Citation Nr: 1334272 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 11-09 059 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder, and if so, whether service connection is warranted. 2. Entitlement to service connection for hypertensive vascular disease. REPRESENTATION Appellant represented by: Lauren Murphy, Agent ATTORNEY FOR THE BOARD L. Willis, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from June 1992 to November 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The evidence shows that the Veteran has been diagnosed with multiple psychiatric disabilities, including Post Traumatic Stress Disorder (PTSD); bi-polar disorder; and dysthymia. In Clemons, the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In light of the Court's decision in Clemons, the Board has re-characterized the psychiatric issue on appeal as entitlement to service connection for an acquired psychiatric disorder. This will provide the most favorable review of the Veteran's claim in keeping with the Court's holding in Clemons. The Board has not only reviewed the Veteran's physical claims file, but also the electronic record maintained in the Virtual VA and VBMS systems to ensure total review of the evidence. The issue of service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In an August 2002 rating decision, the RO denied a claim for service connection for PTSD because there was no evidence of a current diagnosis of PTSD. 2. The evidence received since the prior denial of service connection for PTSD was not previously submitted to agency decisionmakers, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claim. 3. Hypertensive vascular disease did not occur in service or within one year of separation. CONCLUSIONS OF LAW 1. The August 2002 rating decision is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.110 (2013). 2. The evidence received since the August 2002 rating decision is new and material and the claim is considered reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2013). 3. Service connection for hypertensive vascular disorder is not warranted. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in a claim to reopen a previously denied claim, the VA must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. In regards to the claim to reopen the claim for service connection for PTSD, a letter was sent to the Veteran in October 2007 which informed the Veteran that new and material evidence was required to reopen the claim and also defined what constituted new and material. The letter further informed the Veteran of why her claim was previously denied and what was required to reopen the claim. Moreover, in October 2007 and January 2008, the RO informed the Veteran of her obligations to provide necessary information to assist in her claim and the VA's obligations to obtain such evidence and information that is deemed to be in the VA's possession or that the VA has permission to obtain. The Veteran was also informed of VA's practices in assigning disability evaluations and effective dates for those evaluations. In regards to the claim for service connection for hypertension, a letter was sent to the Veteran in October 2010 which detailed the claims process and advised her of the evidence and information needed to substantiate her claim. The letter further informed the Veteran of her obligations to provide necessary information to assist in her claim and the VA's obligations to obtain such evidence and information that is deemed to be in the VA's possession or that the VA has permission to obtain. The Veteran was also informed of VA's practices in assigning disability evaluations and effective dates for those evaluations. Therefore, the Board finds that the VA ahs satisfied its duties to notify under the VCAA. Turning to the VA's duty to assist under the VCAA, in regards to his claim for service connection for hypertension, the Board is aware that the RO did not provide the Veteran with a VA examination. Under McClendon v. Nicholson, 20 Vet. App. 79 (2006), the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service; but (4) insufficient competent medical evidence of record for the VA to make a decision on the claim. Based on McClendon, the Veteran is not entitled to a VA examination because there is no competent evidence which indicates that the Veteran has a diagnosis of hypertension or persistent or recurrent symptoms of hypertension. A diagnosis of hypertension is indicated by blood pressure readings at a specific threshold which the evidence of record does not support. Although the Veteran has indicated that she suffers from hypertension, as discussed below, she is not competent to make such a diagnosis. Therefore, the Board finds that VA satisfies its duty to assist under the VCAA. Accordingly, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a) and 5103A , or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claims. II. Application to Reopen Based on New and Material Evidence The Board finds that the Veteran has submitted new and material evidence to warrant reopening his previously denied claim for service connection. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. 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 must raise a reasonable possibility of substantiating the claim. Id. VA must review all of the evidence submitted since the last final decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, in January 2002 the Veteran submitted a claim for service connection for PTSD. The RO denied the claim in an August 2002 rating decision. A notice of disagreement was not received within the subsequent one-year period, nor was any new and material evidence received during that time period. Therefore, the August 2002 rating decision is final. Most recently, in October 2009, the Veteran filed a claim for service connection for PTSD. The Veteran included August 2007 medical records from a VA treatment center which indicated that the Veteran was diagnosed with "PTSD (provisional), dysthymia, [rule out] bipolar disorder." Social Security Administration (SSA) records from August and September 2010 were also obtained. The Board notes that because the August 2007 VA medical records and August and September SSA records cover a period after the August 2002 rating decision, they did not exist at the time of the prior denial, and hence could not have been considered in connection with that claim. Therefore, they must be considered new evidence. Additionally, the Veteran submitted a personal statement in October 2000 and a statement from her friend in December 2010. These statements are also considered new evidence. The Board further finds that the evidence is not only new, but also material. The new evidence which shows that the Veteran has a diagnosis of PTSD (provisional), dysthymia, [rule out] bipolar disorder "trigger[s] the Secretary's duty to assist by providing a medical opinion" and therefore constitutes new and material evidence under Shade. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010)(New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion). In making this decision, the Board notes that the Secretary shall treat an examination or opinion as necessary to make a decision if the evidence of record: (1) contains competent evidence that the claimant has a current disability; (2) indicates that the disability or symptoms may be associated with the claimant's active military, naval or air service; but (3) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002 & Supp. 2012). Here, the Veteran has multiple psychiatric diagnoses; the examiner noted the Veteran's allegations of abuse during military service, but there is no nexus opinion of record. Accordingly, the Veteran's claim for service connection for a psychiatric disorder is reopened. To that extent only, the appeal is allowed. III. Factual Background The Veteran served in the Army until she was discharged in November 1995 under Chapter 8 due to her pregnancy. At her Chapter 8 discharge examination, the Veteran's blood pressure reading was 122/80. The examiner noted that the Veteran was 35 and one half weeks at the time of the exam. In the medical history report, the Veteran reported that she had "high blood pressure due to being pregnant and stress." The Veteran was seen several times for various medical reasons throughout her service. She was never diagnosed with high blood pressure during service. Previous blood pressure readings include the following: (1) 130/70 (June 1992 enlistment examination; (2) 108/64 (October 1992 Emergency Care treatment record); (3) 120/76 (December 1992 Health Risk Appraisal Profile); (4) 100/60, 90/68, 120/74, 136/117 and 122/70 (January 1993 treatment records); (5) 106/78 and 127/72 (February 1993 treatment record); (6) 94/62 ,100/60 and 124/70 (March 1993 treatment record); (7) 128/60 and 110/75 (April 1993 treatment records); (8) 104/68, 128/70 and 138/80 (July 1993 treatment records); (9) 106/80 (August 1993 treatment record); (10) 120/86 (September 1993 treatment record); (11) 104/74, 102/52, 108/66, 122/70, 112/70 and 104/80 (March 1994 treatment records); (12) 120/60 (April 1994 treatment record); (13) 108/70, 130/80120/70, 112/64, 100/80 and 108/84 (May 1994 treatment records); (14) 100/60 (June 1994 treatment record); (15) 112/72 (July 1994 treatment record); (16) 100/72, 120/78, 110/70, and 100/70 (August 1994 treatment record); (17) 110/70, 120/80 122/84 and 112/64 (October 1994 treatment record); (18) 120/78, 110/98 and 120/88 (December 1994 treatment record); (19) 120/80 (January 1995 treatment record); (20) 110/70 (February 1995 treatment record); and (21) 170/78 (March 1995 treatment record). Since her discharge, the Veteran has been treated at a VA outpatient facility for conditions unrelated to hypertension. Blood pressure readings post service include the following: (1) 118/78 (August 2007 outpatient visit); (2)140/88 and 140/90 (October 2008 outpatient visit); (3) 129/91 and 138/89 (December 2009 outpatient visit); and (4) 122/81 (May 2010 outpatient visit). In May 2010, the Veteran received a blood pressure monitor from a VA facility but no previous or further notes indicate any previous problems with blood pressure. IV. Service connection for hypertensive vascular disease The Veteran contends that her hypertension first began during service while she was pregnant. For the reasons that follow, the Board finds that service connection is not warranted. In order to obtain service connection under 38 U.S.C.A. § 1110 (and 38 C.F.R. § 3.303(a) a Veteran must satisfy a three element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so- called 'nexus' requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Certain chronic diseases such as hypertension may be presumed to have been incurred in or aggravated by service if they manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. See 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2013). For VA purposes, hypertension means that the diastolic (i.e. bottom number) blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic (i.e. top number) blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. 4.104 (2013), Diagnostic Code 7101, Note (1). Here, the Veteran neither meets VA's definition of hypertension nor has she been diagnosed with a cardiovascular disease. When there is an absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Although the Veteran has alleged that she previously suffered from hypertension when she was discharged from service, she has not otherwise alleged that she has suffered from hypertension since discharge. The first mention of hypertension was when she filed a claim for service connection in August 2007, over 10 years after discharge. With respect to negative evidence, the Court has held that the fact that there was no record of any complaint, let alone treatment, involving the Veteran's condition for many years is a significant factor. See Maxson v.West, 12 Vet. App. 453, 459 (1999), affirmed sub. nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In the present case, as indicated in Diagnostic Code 7101, hypertension involves the cardiovascular system and is diagnosed based upon blood pressure testing. It is not a disability capable of lay observation, such as varicose veins or tinnitus. Rather, it is far more analogous to rheumatic fever, as a disease involving internal organs. For that reason, the Veteran's lay opinion, even if considered credible, does not constitute competent evidence and is of no probative value. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Veteran is not otherwise competent to have observed hypertension since service, as hypertension is a cardiovascular disease process not capable of lay observation. Such a determination is the province of trained medical professionals. Moreover, there is also no medical evidence of cardiovascular disease, including hypertension, within one year of the Veteran's discharge. Therefore the presumptive provisions under 38 C.F.R. §§ 3.307 and 3.309 are not applicable. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). ORDER New and material evidence sufficient to warrant reopening a claim of entitlement to service connection for an acquired psychiatric disorder having been submitted, the claim to reopen is granted. Service connection for hypertensive vascular disease is denied. REMAND In an April 2011 letter, the Veteran's former attorney requested that the RO obtain the Veteran's personnel file which he alleged purported to show a drop in the Veteran's work performance and Article 15 related actions taken following the alleged assaults. Additionally, a September 2010 memorandum from a decision review officer stated that the Veteran's entire personnel file was not obtained and instructed the RO to obtain the records. However, the Veteran's personnel records have never been requested. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records. 38 C.F.R. § 3.159(c)(2) (2013). The Board notes the RO's previous attempts to verify the Veteran's statements of stressors through U.S. Army Crimes Record Center in April and September 2008; nevertheless, a remand is necessary to obtain the Veteran's entire personnel file. In addition, although the Veteran has been diagnosed with multiple psychiatric conditions, including PTSD; bi-polar disorder; and dysthymia, none of the examiners offered an etiology of the Veteran's conditions. Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Records Center (NPRC), and/or any other appropriate source of records, and request a complete copy of the Veteran's service personnel records. If any requested records are unavailable, a negative reply is required. 2. Thereafter, schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of all acquired psychiatric disorders present during the period of this claim. The claims file must be made available to and reviewed by the examiner in association with the examination. The VA examination report should indicate that this has been accomplished. All necessary studies and tests should be conducted. A diagnosis of PTSD under the DSM-IV should be confirmed or ruled out. If PTSD is not diagnosed, the examiner should explain why the Veteran does not meet the criteria for this diagnosis. If a PTSD diagnosis is made, the examiner must provide an opinion as to the date of onset, and etiology of the Veteran's PTSD. The examiner must specifically determine (a) whether any currently diagnosed PTSD can be related to the stressors reported by the Veteran and (b) whether these stressors are adequate to support a PTSD diagnosis. These stressors include but are not limited to the incidents described by the Veteran where she was sexually harassed by a non commissioned officer and abused by her husband. The examiner should address all lay and any medical evidence of record. With respect to any other acquired psychiatric disorders currently present or present at any time during the pendency of this claim, the examiner should provide an opinion with respect to each disorder as to whether it is as least as likely as not (50 percent or better probability) that the disorder is etiologically related to the Veteran's active service. A complete rationale must be provided for the opinion. 3. Ensure the development outlined above has been accomplished, that the examination report is adequate, and then arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs