Citation Nr: 1519864 Decision Date: 05/08/15 Archive Date: 05/19/15 DOCKET NO. 12-15 195 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD) and diabetes mellitus. 3. Entitlement to service connection for a bilateral eye disorder. 4. Entitlement to an evaluation in excess of 30 percent for PTSD. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1964 to April 1966. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in in Jackson, Mississippi. In an October 2010 rating decision, the RO denied service connection for a bilateral eye disorder. In a May 2011 rating decision, the RO reopened the claim of service connection for hypertension but denied the underlying de novo claim, and also continued the 30 percent evaluation for PTSD. In March 2015, the Veteran presented testimony in a travel board hearing before the undersigned. A copy of the transcript has been associated with the claims folder. This appeal was processed using the Virtual VA/VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The issues of service connection for hypertension and a bilateral eye disorder, and increased evaluation for PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran did not appeal the September 2009 rating decision denying service connection for hypertension and did not submit new and material evidence within one year. 2. Evidence received since September 2009 rating decision raises a reasonable possibility of substantiating the claim of service connection for hypertension. CONCLUSIONS OF LAW 1. The September 2009 rating decision that denied service connection for hypertension is final. 38 U.S.C.A § 7105 (c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009). 2. New and material evidence has been received sufficient to reopen the claim of service connection for hypertension. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board is reopening the claim of service connection for hypertension, which represents a complete grant of the benefits sought on appeal; thus, there is no need to discuss whether VA has complied with its duties to notify and assist found at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. § 3.159. Although the RO has reopened the previously denied claim for service connection for hypertension, the Board is required to address this particular issue (e.g., the new and material claim) in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claim. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the RO may have made with regard to a new and material claim is irrelevant. Barnett v. Brown, 83 F. 3d 1380, 1383-1384 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). Thus, despite the fact that in the present case the RO has already determined that new and material evidence sufficient to reopen the Veteran's previously denied claim for service connection for hypertension has been received, the Board will proceed, in the following decision, to adjudicate this new and material issue in the first instance. In a September 2009 rating decision, the RO denied the Veteran's claim of service connection for hypertension because there was no evidence of hypertension during service or within a year of service discharge. The Veteran did not appeal that decision or submit new and material evidence within one year. Accordingly, the determination is final. 38 U.S.C.A § 7105 (c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009). At the time of that decision, the medical evidence of record did not show onset of hypertension in service or within a year of service discharge. The Board notes that the Veteran's claim was initially adjudicated on a direct basis, i.e. due to service, and he now asserts that hypertension is secondary to service-connected diabetes mellitus and/or PTSD. The Board observes that separate theories in support of a claim for a particular benefit are not equivalent to separate claims and a final denial on one theory is a final denial on all theories. As such, new and material evidence is necessary to reopen a claim for the same benefit asserted under a different theory. Robinson v. Mansfield, 21 Vet App 545 (2008). To reopen the claim, the new evidence must show that the Veteran's hypertension is related to service or service-connected diabetes mellitus or PTSD. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2014). Evidence received since the September 2009 rating decision includes a January 2011 VA examination report finding that hypertension developed prior to onset of glucose intolerance and was unrelated thereto, and there was also no evidence glucose intolerance aggravated hypertension. As to potential disabilities related to PTSD, the examiner referred the reader to the psychiatric consult. There was no VA mental disorder examination until March 2011, and the report did not address the relationship, in any, between hypertension and PTSD. Based on this evidence, the Board finds that there is sufficient evidence to reopen the claim for service connection for hypertension. As will be discussed in detail below, the January 2011 VA examination report is insufficient in addressing the etiology of the Veteran's hypertension, but intimated that there may be a relationship to the psychiatric disorder. See Barr, infra. For the purposes of determining whether new and material evidence has been submitted, the Board finds that the low threshold to reopen claims and based on the evidence combined with additional VA development, means there is a reasonable possibility of substantiating the claim for service connection for hypertension. Shade v. Shinseki, 24 Vet. App. 110 (2010). To this extent, the appeal is granted. ORDER New and material evidence having been received, the application to reopen a claim for service connection for hypertension is granted. REMAND With regard to the claim for service connection for hypertension, as noted above, the Veteran was afforded a January 2011 VA examination. The examiner noted that hypertension developed prior to onset of glucose intolerance and was unrelated thereto, and there was also no evidence the glucose intolerance aggravated hypertension. Notably, the Board finds that the examiner failed to provide sufficient rationale for his opinion and also did not address the relationship between hypertension and PTSD. As the examination report is insufficient to determine the nature and etiology of the Veteran's hypertension, further evaluation in necessary. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that when VA undertakes to provide a VA examination, it must ensure that the examination is adequate). As to the claim for service connection for a bilateral eye disability, the Veterans testified at his hearing that in 1965 some sort of substance (possibly insecticide, Agent Orange, pollen, formaldehyde, etc.) got into his eye from rubbing his face, and that he has had intermittent problems with his eyes ever since that time. He indicated that in the past, doctors had told him that a previous virus or disease had resurfaced. As the Veteran is competent with regard to the onset and continuity of his eye symptoms and to recite the doctors' statements, the Veteran should be afforded an examination to determine the nature and etiology of any current bilateral eye disability. As to the increased rating claim for PTSD, the Veteran was last afforded an examination in October 2012. Review of the examination report and the Veteran's testimony from his March 2015 hearing show that his symptoms may have worsened since that examination. For example, the examination report did not reflect any difficulties with maintaining or establishing effective relationships. However, during this hearing, he indicated that he did not have relationships and did not go on outings as he did not like to be around people. Therefore, he should be afforded an examination to determine the current severity of his PTSD. On remand, any outstanding records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the virtual claims file all outstanding records of treatment, to specifically include those dated from November 2012 to the present. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. After any additional records are associated with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of his current hypertension. The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The Veteran is competent to attest to factual matters of which he has first-hand knowledge. The examiner must elicit a full history from the Veteran and consider the lay statements of record. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must provide a fully reasoned explanation. a. The examiner must opine as to whether it is at least as likely as not (a 50 percent probability or more) that any current hypertension is causally or etiologically related to service. b. The examiner should also specifically opine as to whether it is at least as likely as not (a 50 percent probability or more) that any current hypertension is either caused by or permanently aggravated by his service-connected diabetes mellitus or PTSD. 3. After any additional records are associated with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of any bilateral eye disability. The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The Veteran is competent to attest to factual matters of which he has first-hand knowledge. The examiner must elicit a full history from the Veteran and consider the lay statements of record. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must provide a fully reasoned explanation. a. The examiner must first identify all current eye disabilities. b. If there are any diagnosed eye disabilities, the examiner must opine as to whether it is at least as likely as not (a 50 percent probability or more) that each is causally or etiologically related to service, to include exposure to various substances in service. The examiner must address the Veteran's contentions, specifically as to intermittent recurrent symptoms since service. 4. After any additional records are associated with the claims file, schedule the Veteran for a VA psychiatric examination to determine the severity of his service-connected PTSD. The entire paper and electronic claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner should describe the Veteran's symptoms and note the functional impairment of the Veteran's service-connected PTSD. The examiner must comment on the severity of the PTSD and report all signs and symptoms necessary for evaluating the disability under the rating criteria as indicated by the relevant DBQ. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2014). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. Review each examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). 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 2014). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs