Citation Nr: 1334021 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-43 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD), and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from January 1988 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, denying the claim currently on appeal. In November 2008, VA received a claim from the Veteran seeking to, among other issues, reopen his claim of entitlement to service connection for hypertension. This claim was denied in an October 2009 rating decision. Less than one month after the Veteran was notified of this decision, he submitted a statement asking VA to reconsider his claims. This was not treated as a valid notice of disagreement, but rather, as a new claim. Nonetheless, the Veteran submitted a statement from his physician in December 2009 that was relevant to his hypertension. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Therefore, the claim that has been perfected to the Board has been pending since November 2008. FINDINGS OF FACT 1. The April 2004 Board decision denying the claim of entitlement to service connection for hypertension was not appealed and is final. 2. Evidence received since the April 2004 Board decision is new and relates to an unestablished fact necessary to substantiate the merits of the claim, and raises a reasonable possibility of substantiating the claim. 3. The Veteran was diagnosed with hypertension during military service and he has continued to suffer from hypertension since his separation. CONCLUSIONS OF LAW 1. The April 2004 Board decision denying the Veteran's claim of entitlement to service connection for hypertension is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2013). 2. New and material evidence has been received and the claim of entitlement to service connection for hypertension is reopened. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). 3. The criteria for establishing entitlement to service connection for hypertension have been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. New and Material Evidence Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In general, Board decisions which are unappealed become final. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156(a), especially the phrase "raise[s] a reasonable possibility of substantiating the claim," does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans, 9 Vet. App. at 273. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran's claim was previously denied because it was deemed questionable whether he had a current diagnosis of hypertension, and, because there was no evidence of any current hypertension having been caused by, or aggravated by, active service. Therefore, for the evidence to be new and material in this case, it should address the reasons for the previous denial or raise a reasonable possibility of substantiating the Veteran's claim. With that having been said, the Board finds that new and material evidence has been submitted to VA since the April 2004 Board decision. Specifically, VA received a statement from a VA physician dated December 2009. According to this physician, the Veteran suffered from hypertension. His PTSD (for which service connection is in effect) was noted to sometimes make blood pressure go up with the Veteran if he was having problems with his PTSD symptomatology. This evidence suggests a potential relationship between hypertension and PTSD, and at the least, raises a reasonable possibility of substantiating the claim. Numerous VA treatment records have also been associated with the claims file since April 2004 reflecting a current diagnosis of hypertension. The April 2004 Board decision suggested that there may not be a current diagnosis, and as such, this evidence directly addresses one of the reasons for the previous denial. The Veteran was also afforded a VA examination in September 2010 in which the diagnosis of essential hypertension was confirmed. Therefore, it is clear that there is a current diagnosis of hypertension. The Board finds that evidence received since the April 2004 Board decision at a minimum raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for hypertension. As such, the claim is reopened. Relevant Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) evidence of a current disability; (2) evidence of in-service occurrence or aggravation of a disease or injury; and (3) evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as hypertension, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2012). A recent decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Also, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. See 38 C.F.R. § 3.310(b); Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). An appellant's own conclusion, stated in support of his claim, that his present disability is secondary to his service-connected disability is not competent evidence as to the issue of medical causation. See 38 C.F.R. § 3.159 (2011); see also Grivois v. Brown, 6 Vet. App. 136 (1994). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Facts and Analysis The Veteran contends that he is entitled to service connection for hypertension. Specifically, the Veteran has asserted that his hypertension was either caused by, or aggravated by, his service-connected PTSD. As will be discussed below, however, the evidence of record actually supports an alternative theory of entitlement. Service connection is warranted on a direct basis. The Veteran's service treatment records reflect that he was noted to have hypertension during active service. According to a December 1989 treatment note, the Veteran had high blood pressure (160/102). While the Veteran was noted to be status post-intoxication in December 1989, subsequent records do not suggest that the Veteran's elevated blood pressure was due to alcohol consumption. A December 1991 record reflects a history of high blood pressure. A July 1992 record notes a diagnosis of mild hypertension. Post-service records continue to reflect hypertension. The Veteran separated from active duty in September 1992. According to a May 1994 VA treatment record, the Veteran had been suffering from hypertension since his return from service in Iraq. A diagnosis of essential hypertension was also noted in a July 1998 treatment record. A history of hypertension was also noted in a July 1999 treatment record. The Veteran was afforded a VA examination in January 2000. The Veteran was noted to be suffering from borderline hypertension without any current treatment. No opinion or statement as to causation or etiology was provided. Subsequent VA treatment records continue to reflect a diagnosis of hypertension. An August 2009 record reflects that despite taking medications, the Veteran's blood pressure was still high. Finally, hypertension is noted upon treatment in September 2011, and a May 2012 record notes that the Veteran needed much tighter control of his blood pressure. Therefore, the evidence clearly demonstrates that the Veteran has a current diagnosis of hypertension. The record also contains several statements from a VA physician with the initials H.H.F. According to a December 2009 statement, "PTSD can sometimes make blood pressure go up if [the Veteran] is having problems with anxiety, stress, or other . . ." symptoms of PTSD. Dr. F also indicated in an October 2010 statement that hypertension "may" have been exacerbated by the Veteran's PTSD. A September 2010 VA examiner concluded that the Veteran's hypertension was less likely as not permanently aggravated by or a result of PTSD and is at least as likely as not a result of unknown causes, as well as tobacco and obesity. In reaching this conclusion, the examiner reviewed the evidence of record, physically examined the Veteran and discussed in great detail medical studies showing an increased risk for hypertension due to factors such as smoking and obesity. However, there is evidence of hypertension being diagnosed during military service, as well as a current disability and evidence of chronicity since service. See, e.g., May 1994, July 1998, July 1999, August 2009, September 2011, and May 2012 VA treatment records, and the January 2000 VA examination report. Indeed, in so finding that it is at least as likely as not that the Veteran's hypertension is the result of "unknown causes (essential hypertension), tobacco use, [or] obesity," (see September 2010 VA opinion), the probability the Veteran's hypertension is due to "unknown causes" cannot be definitively ruled out. As the Veteran's hypertension coincided with a period of active duty and has continued since then, reasonable doubt is resolved in favor of the Veteran. Accordingly, the Board finds that service connection for hypertension, on a direct basis, is warranted. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for hypertension is reopened. The claim of entitlement to service connection for hypertension is granted. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs