Citation Nr: 1418562	
Decision Date: 04/25/14    Archive Date: 05/02/14

DOCKET NO.  08-30 712	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUES

1.  Whether new and material evidence has been presented to reopen the claim of service connection for a back disability.  

2.  Entitlement to recognition of JRW as a helpless child.  

3.  Entitlement to service connection for hypertension to include as secondary to service-connected posttraumatic stress disorder (PTSD).  

4.  Entitlement to an effective date earlier than June 27, 2007 for the grant of service connection for PTSD.  

5.  Entitlement to an initial rating higher than 50 percent for PTSD.  

6.  Entitlement to a total disability rating based on individual unemployability (TDIU).  

REPRESENTATION

Veteran represented by:	Joseph R. Moore, Attorney at Law



ATTORNEY FOR THE BOARD

M. Taylor, Counsel

INTRODUCTION

The Veteran, who is the Appellant, served on active duty from May 1968 to March 1970.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in November 2007 of a Department of Veterans Affairs (VA) Regional Office (RO).  

In June 2012, the Veteran withdrew his request for a hearing. 

In December 2012, the Veteran withdrew the claims of service connection for tinnitus, bilateral hearing loss, and esophageal reflux.  

In January 2013, the Veteran's representative stated that the only claims on appeal were service connection for PTSD, hypertension, and a back disability, spondylolisthesis and degenerative disc disease at L5-S1, and the claim of recognition of JRW as a helpless child.  All other claims were withdrawn.  

In March 2013, the Board granted service connection for PTSD, and remanded for additional development the new and material evidence claim of service connection for a back disability, the claim of service connection for hypertension, and the claim of recognition of JRW as a helpless child,  

In a rating decision in August 2013, in implementing the grant of service connection for PTSD, the RO assigned an initial rating of 50 percent, effective from June 27, 2007.  In a rating decision in November 2013, the RO denied the TDIU claim.  



In January 2014, the Veteran's counsel filed a notice of disagreement to the initial rating of PTSD, to the effective date for the grant of service connection for PTSD, and to the denial of the TDIU claim.  As the RO has not yet issued a statement of the case, the claims are remanded to the RO.  Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).


FINDINGS OF FACT

1.  In July 2013, prior to the promulgation of a decision on the claim, in writing, the Veteran's counsel withdrew the appeal on the new and material evidence claim of service connection for a back disability, spondylolisthesis and degenerative disc disease at L5-S1. 

2.  In March 2014, prior to the promulgation of a decision on the claim, in writing, the Veteran's counsel withdrew the appeal on the claim to recognize JRW as a helpless child. 

3.  Hypertension is the result of service-connected PTSD. 


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the appeal on the new and material evidence claim of service connection for a back disability, spondylolisthesis and degenerative disc disease at L5-S1, have been met.  38 U.S.C.A. § 7105(b)(2).

2.  The criteria for withdrawal of the appeal on the claim to recognize JRW as a helpless child have been met.  38 U.S.C.A. § 7105(b)(2).

3.  The criteria for service connection for hypertension have been met.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310 (2013).


Claims to Withdraw

A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. The withdrawal may be made by the Veteran or by the Veteran's authorized representative.  38 U.S.C.A. § 7105(d)(5); 38 C.F.R. § 20.204. 

In September 2008, the Veteran perfected an appeal to the Board on the new and material evidence claim of service connection for a back disability, spondylolisthesis and degenerative disc disease at L5-S1, and on the claim to recognize JRW as a helpless child. 

In July 2013, prior to the promulgation of a decision on the claim, in writing, the Veteran's counsel withdrew the appeal on the new and material evidence claim of service connection for a back disability, spondylolisthesis and degenerative disc disease at L5-S1. 

In March 2014, prior to the promulgation of a decision on the claim, in writing, the Veteran's counsel withdrew the appeal on the claim to recognize JRW as a helpless child. 

As there remains no allegation of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review the claims. 38 U.S.C.A. § 7105(d)(5) 

Service Connection for Hypertension 

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.  As the Board is granting the claim of service connection for hypertension, VCAA compliance need not be addressed further.


REASONS AND BASES FOR FINDING AND CONCLUSION

Principles and Theories of Service Connection

A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service.  38 U.S.C.A. § 1110 (wartime service).

Service connection may be granted for a disability, which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. 

In determining whether service connection is warranted for a disability, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant.  38 U.S.C.A. § 5107(b). 


Evidence 

The Veteran has been diagnosed with hypertension since 1997 and currently as shown in private medical records and VA records. 

VA records show that in December 2010 hypertension was associated with exposure to Agent Orange.

In April 2013, a private physician expressed the opinion notes that it was more likely than not that the [Veteran's] high blood pressure was caused by long-standing chronic PTSD.  In August 2013, another private physician stated that hypertension often accompanies long-standing PTSD.  




The Veteran's counsel submitted a study published in a cardiovascular medicine journal, whose author was associated with VA, concluding that a person with PTSD reportedly has an increased risk of hypertension. 

On VA examination in October 2013, the VA examiner found not epidemiological evidence that hypertension was causally related to exposure to Agent Orange.  The VA examiner stated too that hypertension was not aggravated by PTSD.

Analysis 

The Veteran asserts in part that hypertension is caused by or aggravated by service-connected PTSD, referred to as secondary service connection.  While other theories of service connection have been advance, the Board finds that the resolution of the theory of secondary service connection is dispositive.

The evidence establishes a current diagnosis of hypertension and that the Veteran is service-connected for PTSD.

On the question of whether hypertension is caused by or aggravated by PTSD, there are medical opinions for and against the claim of secondary service connection.  

Two private physicians stated that hypertension is associated with long-standing PTSD.  A VA examiner stated that hypertension was not aggravated by PTSD.  And the Veteran's counsel has submitted a medical study, whose author was associated with VA, concluding that a person with PTSD reportedly has an increased risk of hypertension. 

As the evidence is in relative equipoise as to whether the current hypertension was caused by or aggravated by service-connected PTSD, the Veteran prevails.





ORDER

The appeal of the new and material evidence claim of service connection for a back disability is dismissed.  

The appeal of the claim to recognize JRW as a helpless child is dismissed.

Service connection for hypertension secondary to service connection for PTSD is granted.  


REMAND

In January 2014, the Veteran's counsel filed a notice of disagreement to the rating decision by the RO in August 2013, assigning an initial rating of 50 percent for PTSD and the effective date of June 27, 2007, for service connection.  The notice of disagreement also pertained to the rating decision by the RO in November 2013, denying the TDIU claim.  

The filing of a notice of disagreement confers jurisdiction to the Board, and the next step is for the agency of original jurisdiction (AOJ) to issue a statement of the case.  As the RO has not yet issued a statement of the case, the claims are remanded.  Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).  

Accordingly, the case is REMANDED for the following action:

Issue a statement of the case on the claim for an effective date before June 27, 2007, for the grant of service connection for PTSD, an initial rating higher than 50 percent for PTSD, and the TDIU claim.  In order to perfect an appeal of any claim, the Veteran must still timely file a substantive appeal




The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The claims 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. 2013).



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs