Citation Nr: 1552905 Decision Date: 12/18/15 Archive Date: 12/23/15 DOCKET NO. 11-19 072 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a rating in excess of 30 percent for chronic pain syndrome affecting the left upper extremity and anterior/posterior chest region status post sweat gland dissection. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for hypertension; and if so, whether service connection is warranted. 3. Entitlement to service connection for chronic pain syndrome of the upper right extremity. 4. Entitlement to service connection for chronic pain syndrome of the lower right extremity. 5. Entitlement to service connection for chronic pain syndrome of the lower left extremity. 6. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to the service-connected disability of chronic pain syndrome of the left upper extremity and anterior/posterior chest region status post sweat gland dissection. 7. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Veteran represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Sorathia, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1984 to March 1987, June 1990 to June 1993, and August 2001 to August 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2009 and August 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran testified before the undersigned Veterans Law Judge in May 2015. A transcript of this hearing is associated with the claims file. The issues of entitlement to a higher rating for chronic pain syndrome of the left upper extremity, entitlement to service connection for chronic pain syndrome of the upper right extremity and bilateral lower extremities, as well as entitlement to TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A September 2007 rating decision denied service connection for hypertension. Additional evidence was received within one year of the rating decision and a March 2008 rating decision continued the denial of service connection for hypertension. The Veteran submitted a timely notice of disagreement and the RO issued a statement of the case in June 2009. The Veteran did not submit a timely substantive appeal. 2. Evidence added to the record since the final rating decision relates to an unestablished fact, is not cumulative or redundant of the evidence of record previously considered at the time of the decision, and raises a reasonable possibility of substantiating the claim of entitlement to service connection. 3. The Veteran's hypertension had its onset during a period of active duty for training. 4. Major depressive disorder is related to service-connected chronic pain syndrome of the left upper extremity. CONCLUSIONS OF LAW 1. The March 2008 rating decision is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015). 2. New and material evidence has been received to reopen the service connection claim for hypertension. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. The criteria for service connection for hypertension are met. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.304 (2015). 4. The criteria for service connection for major depressive disorder are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, 20.302(a), 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining if new and material evidence has been submitted, the evidence is generally presumed to be credible. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). All of the evidence received since the last final disallowance shall be considered in making the determination. See Evans v. Brown, 9 Vet. App. 273, 283 (1996). September 2007 and March 2008 rating decisions denied service connection for hypertension. The Veteran submitted a timely notice of disagreement and the RO issued a statement of the case in June 2009. The Veteran did not submit a timely substantive appeal. The March 2008 rating decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(b), 20.201, 20.1105 (2015). The rating decisions and the statement of the case considered a September 2007 VA examination, VA treatment records, and the service treatment and personnel records. The claim was denied on the basis that the Veteran had a diagnosis of hypertension prior to his August 2001 period of active duty and that the hypertension was not aggravated by service. The Board notes that the Veteran submitted additional copies of his services records after this time. However, these records are duplicative of the service records already associated with the claims file. Thus, reconsideration of the claim is not appropriate. 38 C.F.R. § 3.156(c). Since the final rating decision, the Veteran provided testimony before the undersigned VLJ in May 2015. He testified that he began taking hypertension medication during active duty and that any notation of taking hypertension medication prior to active duty is incorrect. He also testified that the dosage of his medication increased during service which provided an indication that his hypertension worsened during service. This evidence is new in that it was not previously of record. Also, the newly received evidence is material as it relates to the unestablished fact of the onset of the Veteran's hypertension and that the Veteran's hypertension worsened during service. These statements, which are presumed credible, indicate that the Veteran either did not have a pre-existing condition or that his pre-existing condition worsened during service. See Justus, 3 Vet. App. at 513. Such evidence tends to prove the previously unestablished fact of onset and raises a reasonable possibility of substantiating the Veteran's claim. Accordingly, the claim of entitlement to service connection for hypertension is reopened. 38 C.F.R. § 3.156(a). See Shade, 24 Vet. App. at 117. Service Connection for Hypertension Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Active military, naval, and air service includes active duty; any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred in or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6(a), 3.7(r) (2015). When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. 38 C.F.R. § 3.102 (2013); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has a current diagnosis of hypertension. He contends that his hypertension began during his last period of active duty service in 2001. To support his contention, he provided a service document which noted that he had active duty for training in January 2001 for 120 days. The Veteran's service records show that he served from June 1984 to March 1987 and from June 1990 to June 1993. He then had active duty for training (ACDUTRA) in January 2001 for 120 days. After that, he had another period of active duty service from August 2001 to August 2006. Service examination reports dated June 1984, February 1987, and January 1990 reveal no diagnosis or indication of hypertension. A June 1993 service examination report noted that the Veteran's blood pressure was tested once and that it was 140/98. He was not tested again and it was noted that he had a normal physical with no significant medical problems. It was also noted that he had a normal heart and vascular system. A January 1999 examination report noted blood pressure of 130/78 with no recommendations to see a specialist. It was noted that he had a normal heart and vascular system. A March 2001 treatment record noted blood pressure of 144/89 but stated that the Veteran was not on medication. In April 2001, the Veteran was noted to have been prescribed blood pressure medication. An August 2001 treatment record noted a history of hypertension and the Veteran was given a refill of his blood pressure medication. In a September 2007 VA examination report, the examiner provided a diagnosis of hypertension and noted that the Veteran reported onset of hypertension in 1988. The examiner did not review the claims file. In an October 2008 lay statement, the Veteran stated that he did not tell the doctor that he had hypertension in 1988 and that this was an error. The Board finds the Veteran's statement that the 1988 notation was an error to be credible since the contemporaneous service records reveal that the Veteran did not have a diagnosis of hypertension at that time. Thus, the Board does not find the September 2007 examination report to be probative as to this issue. It does not appear that the Veteran had a confirmed diagnosis of hypertension prior to his January 2001 ACDUTRA period of service. His January 2001 ACDUTRA period of service was for 120 days and an April 2001 treatment record noted that the Veteran was prescribed blood pressure medication. Thus, after resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's hypertension had its onset during his ACDUTRA period. Service Connection for Acquired Psychiatric Disorder A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. To establish service connection on a secondary basis, three elements must be met: (1) current disability; (2) service-connected disability; and (3) nexus between current disability and service-connected disability. Wallin v. West, 11 Vet. App. 509 (1998). The Veteran contends that he has an acquired psychiatric disability that is related to his service-connected chronic pain syndrome of the left upper extremity. The Veteran provided competent testimony that he did not have depressive symptoms in service and that his depressive symptoms began after service due to his service-connected chronic pain syndrome. The Veteran is competent to identify and state the onset of his depressive symptoms. See Jandreau, 492 F.3d at 1376. The Board finds this testimony to be credible. The Veteran's VA treatment records reveal psychiatric treatment and a diagnosis of major depressive disorder. A December 2013 VA treatment record noted that the Veteran had major depressive disorder related to his chronic pain syndrome. The Board finds this to be credible medical evidence establishing a relationship between the Veteran's diagnosed major depressive disorder and his service-connected chronic pain syndrome of the left upper extremity. The Veteran testified that a grant of service connection for an acquired psychiatric disorder, regardless of the diagnosis, would satisfy his appeal. Thus, service connection for major depressive disorder is warranted. ORDER New and material evidence has been submitted to reopen a claim of service connection for hypertension. Service connection for hypertension is granted. Service connection for major depressive disorder is granted. REMAND The Veteran is currently service-connected for chronic pain syndrome affecting the left upper extremity and anterior/posterior chest region status post sweat gland dissection. He contends that he also has a chronic pain disability of the right upper extremity and the bilateral lower extremities as a result of this in-service operation. He states that this chronic pain syndrome is the same disease process that is impacting his service-connected left upper extremity and that he had symptoms of this chronic pain syndrome affecting all four extremities in service. A January 2013 treatment record from the Veteran's doctor noted that the Veteran has complex regional pain syndrome that affects the bilateral upper arms, chest, upper back, neck, and bilateral lower extremities. A June 2013 notation from a pain clinic noted a diagnosis of chronic pain syndrome with unclear etiology. The Veteran was provided a May 2013 VA examination. The examiner stated that he was unable to conclude that the Veteran has any symptoms and/or impairments due to complex regional pain syndrome without resorting to mere speculation. The examiner stated that the Veteran does not meet the criteria for complex regional pain syndrome. The examiner stated that the Veteran should be evaluated by a VA pain specialist given the conflicting medical opinions of record. The record indicates that a RO attempted but could not schedule the Veteran with a pain specialist. Since the VA examination, the Veteran testified that his symptoms of the right upper extremity and bilateral lower extremity began in service after the sweat gland surgery. He stated that a December 2005 service profile which states that he cannot run or perform sit-ups or push-ups indicates that he was having difficulty with all four extremities in service. He testified that his doctors who diagnosed him with complex regional pain syndrome have reviewed his claims file. Additionally, a July 2013 treatment record also notes that the Veteran has complex regional pain syndrome "in both arms . . ." Due to the conflicting medical evidence of record and the Veteran's additional testimony, the Board finds that another VA examination is warranted in order to clarify the Veteran's diagnosis and determine whether any such diagnosis is related to the in-service sweat gland surgery. During the May 2015 Board hearing, the Veteran also testified that his symptoms of the service-connected left upper extremity have worsened since his last examination. As such, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his service-connected left upper extremity disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, this claim must be remanded. The Veteran contends that he is unable to work due to his service-connected disability. Since the issue of entitlement to TDIU is intertwined with the issues being remanded, the TDIU claim must be remanded as well. Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). Accordingly, the case is REMANDED for the following action: 1. Associate pertinent VA treatment records dated since July 2014 with the claims file. 2. Request that the Veteran identify any pertinent private treatment records that are not currently associated with the claims file. Such records should be sought. 3. Invite the Veteran to submit medical and hospitalization records, medical statements, and any other lay or medical evidence from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed, of the severity of his chronic pain syndrome of the left upper extremity, and the nature and etiology of the disabilities of his right upper extremity and bilateral lower extremities. He should also be informed that he can submit lay statements regarding the impact of his service-connected disability on his ability to work. 4. Then, afford the Veteran an appropriate VA examination, to be conducted by a pain specialist if possible. The claims file should be made available to and reviewed by the examiner. The examiner is to review the claims file, to include the December 2005 service record and the January 2013, June 2013, and July 2013 treatment records, as well as the April 2009, November 2010, November 2012, and May 2013 VA examination reports. After examining the Veteran and conducting appropriate tests, the examiner should identify whether the Veteran has a disability of the right upper extremity, the right lower extremity, and the left lower extremity. The examiner should state whether it is at least as likely as not that the Veteran has complex regional pain syndrome. The examiner is to opine as to whether the Veteran has a disability of the right upper extremity that is related to his in-service sweat gland operation. The examiner is to opine as to whether the Veteran has a disability of the right lower extremity that is related to his in-service sweat gland operation. The examiner is to opine as to whether the Veteran has a disability of the left lower extremity that is related to his in-service sweat gland operation. The examiner is to consider the Veteran's contention that he has complex regional pain syndrome of all four extremities and that the symptoms began in service after the in-service operation. The examiner should also consider the December 2005 service record and the January 2013, June 2013, and July 2013 treatment records, as well as the April 2009, November 2010, November 2012, and May 2013 VA examination reports. Then, the examiner should discuss the nature, extent, and severity of the Veteran's service-connected chronic pain syndrome affecting the left upper extremity and anterior/posterior chest region. The examiner should consider the Veteran's statements regarding his difficulty writing. The examiner should also discuss the impact of the Veteran's service-connected disability on his ability to work. 5. Then readjudicate the claims. If the benefits sought remain denied, the Veteran must be furnished a Supplemental Statement of the Case. The Veteran must be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further Veteran consideration. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs