Citation Nr: 1541760 Decision Date: 09/28/15 Archive Date: 10/05/15 DOCKET NO. 12-09 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of service connection for hypoglycemia, and if so, entitlement to service connection for hypoglycemia. 2. Whether new and material evidence has been submitted to reopen a claim of service connection for acquired psychiatric disability, and if so, entitlement to service connection for acquired psychiatric disability. REPRESENTATION Appellant represented by: Ronald Metzinger, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran had active service from September 1967 to June 1971. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by Regional Offices (ROs) of the United States Department of Veterans Affairs (VA). In a June 2010 rating decision, the RO denied reopening of a previously denied claim for service connection for hypoglycemia. In a November 2013 rating decision, the RO denied reopening of a previously denied claim for service connection for acquired psychiatric disability. In August 2015, the Veteran had a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is in the Veteran's claims file. The issue of reopening of a previously denied claim for service connection for an acquired psychiatric disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran did not file a notice of disagreement with an August 1996 rating decision denying service connection for hypoglycemia. No new and material evidence was received within a year after that rating decision. No service department records not previously associated with the claims file have been received. 2. Evidence received since the August 1996 rating decision includes medical evidence and opinions supporting current reactive hypoglycemia, signs of hypoglycemia during service, and a connection between events in service and current hypoglycemia. 3. During service the Veteran had syncopal episodes and other symptoms that were consistent with reactive hypoglycemia. After service symptoms continued and reactive hypoglycemia was diagnosed. CONCLUSIONS OF LAW 1. The August 1996 rating decision denying service connection for hypoglycemia is a final decision. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 3.156 (2015). 2. Evidence received since the August 1996 rating decision is new and material to a claim for service connection for hypoglycemia. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156. 3. Reactive hypoglycemia was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Hypoglycemia The Veteran contends that he has hypoglycemia that began during his service. In January 1996, the Veteran submitted a claim for service connection for hypoglycemia. In an August 1996 rating decision, the RO denied service connection for hypoglycemia. A rating decision becomes final when a claimant does not file a notice of disagreement (NOD) within one year after a decision is issued. 38 U.S.C.A. § 7105. A rating decision also becomes final if a claimant files a timely NOD, but does not file a timely substantive appeal. 38 U.S.C.A. § 7105. A final decision on a claim that has been denied shall be reopened if new and material evidence with respect to that claim is presented or secured. 38 U.S.C.A. §§ 5108, 7104(b). The United States Court of Appeals for Veterans Claims (Court) has ruled that, if the Board determines that new and material evidence has been submitted, the case must be reopened and evaluated in light of all of the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New and material evidence received within a year after the rating decision will be considered as having been filed in connection with the claim. 38 C.F.R. § 3.156(b). If service department records not previously associated with the claims file are received, VA will reconsider the claim. 38 C.F.R. § 3.156(c). During the year following the August 1996 rating decision, the Veteran did not file an NOD with that decision. That decision became final. No evidence that was new and material to the right shoulder disability claim was received within the appeal period. No additional service department records were received after that rating decision. In November 2009, the Veteran requested to reopen a claim for service connection for hypoglycemia. In order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the last time that the claim was finally disallowed on any basis (not only since the last time that the claim was disallowed on the merits). Evans v. Brown, 9 Vet. App. 273 (1996). The only final disallowance on any basis of the Veteran's claim for service connection for hypoglycemia is the August 1996 rating decision. The Board will consider whether new and material evidence has been submitted since that decision. 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). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, supra, at 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Court has explained that, in general, service connection on a direct basis requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The evidence that was in the claims file in August 1996 includes the Veteran's service treatment records, some post-service treatment records, and reports of VA medical examinations. During service, the Veteran was hospitalized following syncopal episodes. Treating clinicians did not determine the etiology of the syncope. On VA examination in March 1996, the Veteran reported hypoglycemic episodes, with syncope, during service, and continuation of such episodes since service, with symptoms including personality problems and outbursts of anger. The examiner listed a diagnosis of hypoglycemic episodes. In the August 1996 rating decision denying service connection for hypoglycemia, the RO found that hypoglycemia is a laboratory finding, and not a disabling condition for which service connection can be established. The RO also found that during service the Veteran reported episodes of partial syncope, but that he did not have hypoglycemia during service. The evidence that has been added to the claims file since August 1996 includes more medical records, medical opinions regarding the claim, and arguments, including hearing testimony, from the Veteran. In March 2009, VA physician S. L., M.D., indicated that the Veteran probably had reactive hypoglycemia. In April 2011, private physician C. N. B., M.D., reported having reviewed the Veteran's claims file. Dr. B. expressed the opinion that the Veteran's syncope and glucose tolerance test results during service were signs and symptoms of hypoglycemia. He opined that the Veteran had hypoglycemia during service that continued after service and is currently diagnosed as reactive hypoglycemia. The evidence added since August 1996 addresses the questions of the existence of a chronic hypoglycemic disorder, the onset of hypoglycemia during service, and a connection between events in service and current hypoglycemia. The new evidence thus relates to facts necessary to substantiate the claim for service connection for hypoglycemia. For purposes of reopening the claim, the credibility of the new evidence is presumed. The new evidence in this case raises a reasonably possibility of substantiating the claim. The new evidence thus is material. As new and material evidence has been received, the Board grants reopening of the claim. Having reopened the claim for service connection for hypoglycemia, the Board will consider the claim on its merits. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran was not found to have hypoglycemia on examination in August 1967 for entrance into service. Records of treatment during service show treatment for injuries and illnesses, without any reference to syncope or blood sugar levels. Prior to any treatment for syncope, and unrelated to any medical condition, the Veteran's separation from service was scheduled for June 1971. In April 1971, the Veteran was hospitalized for evaluation following the third of three reported partial syncopal episodes. He described a first episode, in May 1968, in which he experienced black spots and then grayness before his eyes, and drove into a car in front of him. He related a second episode in which he experienced black spots and grayness and he fell to the floor, but did not lose consciousness. He stated that in the third episode, in April 1971, he saw black spots and grayness, and began to fall, but caught himself and broke his fall to the floor. He was referred for evaluation in April 1971 and remained in the hospital for three weeks. He did not have additional syncopal episodes while in the hospital. Evaluation included imaging and testing. A five-hour glucose tolerance test revealed sub-normal limits. On an endocrinology consultation, the physician felt that there was no evidence of hypoglycemia. Physicians entered impressions of syncope and flat glucose tolerance curve. Physicians indicated that no etiology for the syncope was found. As the Veteran was released from the hospital, neurological follow-up was recommended. The report of a May 1971 examination of the Veteran for separation from service noted the hospitalization in April and May 1971 in response to syncope, with no etiology found. In June 1971, the Veteran went through with his separation from service as previously scheduled. The Veteran has not discussed any medical treatment during the years immediately following his separation from service, and his claims file does not contain any medical records from those years. In VA mental health treatment in November 1995, the Veteran reported recent private treatment with a diagnosis of bipolar disorder. He related that during service in 1971 he had collapsed due to hypoglycemia. In a January 1996 statement, the Veteran wrote that during service he was treated for hypoglycemia. On VA examination in March 1996, the Veteran reported that during service he had syncopal hypoglycemic episodes. He stated that after service, through the early 1970s, he had three to four hypoglycemic episodes a year, and that symptoms included wide mood swings and hallucinations. He related that presently he had three to four episodes a year, with associated angry outbursts and explosive behavior. The examiner ordered laboratory tests. He later noted that the Veteran did not return for those tests. The examiner listed a diagnosis of hypoglycemic episodes. In records of VA treatment of the Veteran in January 2009, a problem list included a diagnosis of bipolar disorder. In a March 2009 endocrinology consultation, the Veteran reported that during service he had three syncopal episodes. He stated that he was found to have hypoglycemia. He expressed his impression that his hypoglycemia triggered mood swings, and that these occurred more frequently with a high carbohydrate diet. He related that he had been found to have bipolar disorder. The consulting endocrinologist, Dr. L., listed assessments of mood disorder with post-prandial spells worsened by high carbohydrate diet, and probable reactive hypoglycemia. Dr. L. noted that he did not have access to records documenting a clear correlation of blood glucose levels and symptoms. Dr. L. started the Veteran on medication. Later, Dr. L. reviewed the Veteran's service treatment records and the report of the March 1996 VA examination. In August 2009, Dr. L. stated that data from the service treatment records was consistent with episodes of reactive hypoglycemia, but not definitive, because actual hypoglycemia had not been documented. He noted that the medication prescribed to address reactive hypoglycemia had been effective for the Veteran. The Veteran submitted a Wikipedia article indicating that reactive hypoglycemia is a term describing episodes of symptomatic hypoglycemia following a high carbohydrate meal. Private neuro-radiologist Dr. B. reviewed the Veteran's records and provided an opinion in April 2011. Dr. B. noted that syncope was a known sign of hypoglycemia. Dr. B. stated that at the time of the Veteran's service, the medical literature about hypoglycemia was rudimentary. Dr. B. referred to a 2010 medical journal article discussing preventive treatment for reactive hypoglycemia. He discussed Dr. L.'s statements. Dr. B. expressed the opinion that the Veteran's syncope and glucose tolerance test results during service were signs and symptoms of hypoglycemia. He opined that the Veteran had hypoglycemia during service that continued after service and is currently diagnosed as reactive hypoglycemia. In the August 2015 Board hearing, the Veteran indicated that his separation from service was scheduled to occur in 1971. Shortly before the scheduled separation, he stated, he underwent hospital evaluation for syncopal episodes. He reported that the episodes continued after the hospital evaluation, and after service, through the present. He indicated that it was not until some time after service that he learned that he had hypoglycemia. He stated that presently his hypoglycemic episodes were manifested by physical and psychological symptoms. Physicians have supported a diagnosis of reactive hypoglycemia. Drs. L. and B. have supported a likely or probable connection between the Veteran's syncopal episodes and laboratory findings during service and his current reactive hypoglycemia. The assembled medical opinions are not unanimous, and they included acknowledgement that a connection has not been shown definitively. Nonetheless, the evidence supporting a connection at least balances the negative evidence and evidentiary gaps. Resolving reasonable doubt in the Veteran's favor, the Board grants service connection for reactive hypoglycemia. VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015). As the Board is granting herein reopening of a claim for service connection for hypoglycemia, and service connection, on the merits, for hypoglycemia, it is not necessary to discuss the VA's duties to assist the Veteran in substantiating that claim. ORDER A claim for service connection for hypoglycemia is reopened. Entitlement to service connection for reactive hypoglycemia is granted. REMAND The Veteran has sought service connection for psychiatric disability. His contentions include the assertion that he has psychiatric and behavior problems caused by hypoglycemia that began during service. In rating decisions issued in April 1996 and June 1996, the RO denied service connection for a psychiatric disorder including bipolar disorder. The Veteran did not perfect an appeal of those decisions. Through evidence submitted from 2009 forward, he again raised the issue of service connection for psychiatric disability. In a November 2013 rating decision, the RO denied reopening of a previously denied claim for service connection for psychiatric disability. Later in November 2013, the Veteran, through his representative, indicated that he wanted to move forward in an appeal regarding a claim for service connection for a psychiatric disorder, including manic depressive disorder or bipolar disorder. That statement constituted a notice of disagreement (NOD) with the November 2013 rating decision denying reopening of the claim for service connection for psychiatric disability. When a claimant files a timely NOD, the agency of original jurisdiction (in this case, the RO) must prepare and send to the claimant a statement of the case (SOC). 38 C.F.R. § 19.26 (2015). The RO has not sent the Veteran an SOC addressing his appeal of the November 2013 rating decision denying reopening of the claim for service connection for psychiatric disability. The Court has indicated that when a claimant submits an NOD, and the RO does not issue an SOC on the issues addressed by the NOD, the Board should remand the issue to the RO for the issuance of an SOC. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The Board therefore remands the issue of reopening of a claim for service connection for psychiatric disability to the RO, for the RO to issue an SOC. Accordingly, the case is REMANDED for the following action: Issue to the Veteran and his representative a statement of the case addressing the issue of reopening of a previously denied claim for service connection for acquired psychiatric disability. Advise the Veteran and his representative of the time limit in which he may file a substantive appeal as to that issue. If appeal of that issue is timely perfected, return the issue to the Board for appellate consideration, if otherwise in order. The Board intimates no opinion as to the ultimate outcome of the matter that the Board has remanded. The Veteran has the right to submit additional evidence and argument on that matter. 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). ______________________________________________ MATTHEW D. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs