Citation Nr: 1603634 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 12-27 187A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for hypertension. 2. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, alcoholism, or posttraumatic stress disorder (PTSD), and, if so, whether service connection is warranted. 3. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a shin pain disability, and, if so, whether service connection for shin pain disability may be granted. 4. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for residuals of a right eye injury, and, if so, whether service connection for residuals of a right eye injury may be granted. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran had active service from October 1981 to October 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). In his October 2012 substantive appeal, the Veteran requested a hearing before the Board. The requested hearing was conducted by Videoconference in December 2015 before the undersigned. Unfortunately, a transcript of the December 2015 hearing could not be produced. The Veteran was advised, in December 2015, that a written transcript was not available, and was afforded the opportunity to request another hearing before the Board. The Veteran was advised to make his request within 30 days if he wished to testify again before the Board. No response from the Veteran has been received. The 30-day period for response has elapsed. Appellate review may proceed. The Veteran's claims file is wholly electronic. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The medical evidence establishes that the Veteran did not have hypertension in service or within one year thereafter. 2. The Veteran has withdrawn his request to reopen claims for service connection for PTSD and alcohol abuse. 3. The medical evidence, including VA examination reports submitted since the last final denial of service connection for an acquired psychiatric disorder, is new and material to reopen the claim. 4. The medical evidence establishes that it is less than likely that the Veteran's current depressive disorder was incurred in or results from his service or any incident thereof. 5. The Veteran's testimony before the Board provides new and material evidence to reopen a claim for service connection for a shin disability manifested by pain on walking. 6. The Veteran's testimony that he has bilateral shin pain on use is credible, and medical evidence identifies pathology linked to the Veteran's complaints of shin pain. 7. The Veteran's testimony at his December 2015 Videoconference hearing before the Board provides new and material evidence to reopen a claim for service connection for residuals of a right eye injury. 8. The medical evidence establishes that the Veteran's complaints of bilateral subjective eye symptoms are not related to a right eye injury in service. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are not met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2015). 2. The criteria for withdrawal of the Veteran's Substantive Appeal on the issue of service connection for PTSD and alcohol abuse are met. 38 U.S.C.A. §§ 5103(a), 5103A, 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204(b)(c) (2015). 3. The claim for service connection for an acquired psychiatric disability diagnosed as major depressive disorder is reopened. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2015). 4. The criteria for service connection for an acquired psychiatric disability diagnosed as major depressive disorder are not met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2015). 5. The claim for service connection for bilateral shin pain is reopened. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2015). 6. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral shin pain are met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2015). 7. The claim for service connection for residuals of a right eye injury is reopened. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2015). 8. The criteria for service connection for subjective residuals of a right eye injury are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Law and regulations governing service connection Service connection may be granted for a disability due to a disease or injury which was incurred in or aggravated by active duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. A claim for service connection is substantiated by competent evidence of current disability (established by medical diagnosis or lay evidence); evidence of incurrence or aggravation of a disease or injury in service (established by lay or medical evidence); and evidence of a nexus between the in-service injury or disease and the current disability (established by medical evidence). See generally Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 18 S. Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). A Veteran is competent to testify as to a condition within his knowledge and personal observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bruce v. West, 11 Vet. App. 405, 410-11 (1998) (Veteran competent to describe dry, itchy, scaling skin); but see Layno v. Brown, 6 Vet. App. 465 (1994) (lay testimony that Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise). Entitlement to service connection for a particular disability requires evidence of the existence of a current disability and evidence that the disability resulted from a disease or injury incurred in or aggravated during service. Where the medical evidence establishes that a Veteran does not currently have a disorder for which service connection is sought, service connection for that disorder is not authorized under the statues governing Veterans' benefits. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). VA is not generally authorized to grant service connection for symptoms alone, such as pain, without an identified basis for the symptoms. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Pursuant to 38 U.S.C.A. § 5108, VA must reopen a claim that has been previously denied if, but only if, new and material evidence is presented or secured with respect to that claim. New and material evidence means existing evidence not previously submitted to agency decisionmakers. 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. There is a low threshold for the evidence required to reopen a claim. The definition of new and material evidence is 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). The requirement of the receipt of new and material evidence to reopen a claim is a material legal issue that the Board is required to address on appeal, regardless of the RO's action in the matter. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). 1. Claim for service connection for hypertension VA considers systolic pressure of 140 mm/Hg or more, or diastolic pressure of 90 mm/Hg or more, to be indicative of Stage 1 hypertension. See Veterans Benefits Administration (VBA) Training Letter 00-07 (July 17, 2000) (citing to the Sixth Report of the Joint National Committee on Prevention, Detection, Evaluation, and Treatment of High Blood Pressure (1997)). A diagnosis of hypertension requires two or more readings on at least three different days. Id; 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). The Veteran's service treatment records disclosed that the Veteran's blood pressure was recorded as 140/80 at his September 1981 service induction examination. At his service separation examination, in June 1985, his blood pressure was 118/68. During service, blood pressures varying from 118/66 (February 1982) to 162/94 (during emergency treatment in July 1985), were recorded. However, no provider commented on the isolated elevated blood pressure readings. No provider directed additional evaluation of the Veteran's blood pressure or assigned a diagnosis of high blood pressure prior to the Veteran's service discharge in 1985. Following the Veteran's service discharge, VA examination in December 1985 revealed a blood pressure reading of 110/64. VA outpatient clinical records reflect that a diagnosis of high blood pressure was assigned in 2008, about 20 years after the Veteran's service discharge. At that time, providers noted that the Veteran had no prior diagnosis or treatment of hypertension. In a VA opinion dated in January 2011, the reviewer noted that the Veteran had some elevated blood pressure readings in service, and stated that such periodic elevations, even where no diagnosis of high blood pressure is appropriate, "are not uncommon." The reviewer noted that there was no consistent treatment of elevated blood pressure while the Veteran was in service. Therefore, the reviewer concluded, it was less than likely that the elevated blood pressure reading noted in service represented "incipient" hypertension or a prehypertensive state, providing evidence against this claim. The Veteran's belief that he had high blood pressure beginning in service is less persuasive than the reviewer's opinion that the Veteran did not have hypertension, incipient hypertension, or a pre-hypertensive state in service, since a lay person is not able to observe the onset of hypertension, at least not in the circumstances presented in this case. Additionally, the reviewer's opinion is more consistent with the post-service medical evidence. The Veteran denied hypertension during VA treatment in 2004, and 2008 VA treatment notes reflect that the providers assigned a diagnosis of new onset, hypertension. The 2004 and 2008 VA medical evidence is consistent with the medical opinion that the Veteran's isolated episodes of increased blood pressure in service did not represent hypertension or a prehypertensive state. The unfavorable medical evidence and opinion preponderate strongly against the claim that the Veteran incurred or manifested hypertension in service or within one year following service discharge. 38 U.S.C.A. § 5107(b). The claim must be denied. 2. Request to reopen service connection for an acquired psychiatric disability The Veteran's service treatment records reflect that he was treated for substance abuse in service. The Veteran's service personnel records reveal that he was charged with a disciplinary infraction in June 1985. The report reflects that the Veteran failed to report to his assigned duties at the assigned time, due to overindulgence in intoxicating liquors or drugs. No psychiatric disorder was noted or reported on the Veteran's 1985 service separation examination. Service connection for major depressive disorder and for PTSD was denied in a January 2006 rating decision. Service connection for depression or anxiety was denied in August 2006. Therefore, the Veteran was correct when he stated, in his January 2008 claim, that he was seeking to reopen a claims for service connection for an acquired psychiatric disability, to include PTSD and major depressive disorder, since claims for service connection for those acquired psychiatric disabilities were previously disallowed. a. Withdrawal of substantive appeal for reopening of PTSD claim and service connection claim for alcoholism Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(c). The Veteran's claim for service connection for alcoholism was denied in October 2008, and the Veteran perfected appeal of that claim, along with an appeal of the denials of reopening of claims for service connection for major depressive disorder and PTSD. In December 2014, the Veteran withdrew his request to reopen a claim for service connection for PTSD. The Veteran withdrew a claim for service connection for alcoholism in September 2015. It is appropriate, under Clemons v. Shinseki, 23 Vet. App. 1 (2009), to characterize the Veteran's request to reopen claim for PTSD and for major depressive disorder as a request to reopen a claim for service connection for an acquired psychiatric disorder. To the extent that the request to reopen a claim for service connection for an acquired psychiatric disability includes PTSD, the Veteran may withdraw the claim for service connection for PTSD without withdrawing the entirety of the appeal to reopen the claim for service connection for an acquired psychiatric disorder. The claim for service connection for alcoholism was denied as a matter of law, after the request to reopen a claim for service connection for an acquired psychiatric disability, and the Veteran may separately withdraw that appeal without withdrawing the request to reopen the claim for service connection for an acquired psychiatric disability, including a claim for service connection for a major depressive disorder or acquired psychiatric disability other than PTSD. As the Veteran has withdrawn his appeal for service connection for alcoholism, and the appeal for service connection for an acquired psychiatric disability claimed as PTSD, no allegations of errors of fact or law remain for consideration by BVA as to those specific disorders; there is simply nothing remaining on appeal as to service connection for PTSD or alcoholism). However, the Board finds no intent on the part of the Veteran that he withdraw the claim for service connection for an acquired psychiatric disability other PTSD or alcoholism. Accordingly, the claim for service connection for an acquired psychiatric disability other than PTSD or substance abuse remains on appeal. b. New and material evidence to reopen acquired psychiatric disability claim As noted, the evidence received since the 2006 rating decisions includes more than 500 pages of additional VA clinical records, the Veteran's testimony, and reports of VA examinations confirming that the Veteran presents major depressive disorder. Some of those records suggest the possibility that the Veteran has a current psychiatric disorder related, at least in part, to his service. In May 2009, the Veteran submitted a medical statement from a treating VA clinician. The clinician opined that the Veteran's major depressive disorder was linked, in part, to PTSD and linked in part to other etiology. When a claim is reopened, and development is complete, the Board addresses the claim on the merits. c. Claim for service connection for major depressive disorder, on the merits In August 2013, a treating VA provider opined that the Veteran's depression was "mostly due to the ongoing strict probation." On VA examination conducted in June 2015, the examiner assigned a diagnosis of major depressive disorder with anxious distress, and substance abuse disorders. The Veteran reported numerous hospitalizations for treatment of mental health issues and substance abuse since 1992. The examiner noted the Veteran's history of childhood trauma, previously noted. The examiner opined that the Veteran's depression, which the Veteran related to homelessness beginning in 1990, had its etiology in the Veteran's traumatic early childhood and use of alcohol beginning at age 12. The examiner concluded that the Veteran's current depression was less than likely due to his service or a June 1985 disciplinary action (Article 15). The examiner's June 2015 opinion is persuasive, well-reasoned, and provides a history consistent with history documented over many years. The Veteran's belief that his current major depressive disorder results from his service, while sincere, is not competent medical evidence, since the etiology of a psychiatric disorder is not a matter readily observable by a lay person. Thus, the medical opinion is more persuasive and of greater probative value than the Veteran's lay opinion. The preponderance of the evidence is against the claim. There is no reasonable doubt. The claim for service connection for an acquired psychiatric disability must be denied. 3. Shin disability During service, the Veteran complained of muscle cramps in the legs. The Veteran reported a foot injury and left foot pain in October 1983. In November 1984, he reported that he twisted his ankle. He did not report ankle or shin pain at service separation examination in 1985, but did report occasional leg cramps when running. a. New and material to reopen claim for shin splints As noted, the evidence received since the prior final decision denying service connection for shin splints includes more than 500 pages of additional VA clinical records, the Veteran's testimony, and reports of VA examinations confirming that the Veteran has plantar fasciitis, for which service connection has been granted, and complaints of lower extremity anterior compartment pain (shin splints). The Veteran's testimony regarding continuity of shin pain since service raises the possibility that the Veteran has a current shin pain disorder related, at least in part, to his service. When a claim is reopened, and development is complete, the Board addresses the claim on the merits. The evidence is sufficiently developed to address on the merits. b. Claim on the merits, shin pain disability VA outpatient records dated in May 2004 and June 2004 reflect that the Veteran reported shin pain with walking. By a rating decision issued in August 2004, the RO denied service connection for foot, leg, shin, and ankle disabilities. In January 2006, the RO confirmed the denial of service connection for a shin disorder, among other disabilities. Therefore, the Veteran's August 2006 statement that he wished to reopen a claim for "[f]oot, leg, and shin pain" was accurate. His August 2008 claim for service connection for "shin splints" was another request to reopen that claim. The examiner who conducted VA examination of the feet in September 2015 noted that the Veteran had pain on use of both feet. He did not have decreased arch height, pronation, or calluses, so as to warrant a diagnosis of pes planus. Rather, the examiner assigned a diagnosis of plantar fasciitis. The examiner concluded that the Veteran's plantar fasciitis was at least as likely as not incurred in service, since there was evidence of left foot pain in service and continuity of symptoms thereafter. Service connection for bilateral plantar fasciitis was granted by an October 2015 rating decision. No specific VA medical opinion to identify the pathology underlying the Veteran's complaint of shin pain disability. However, VA outpatient treatment records consistently provide the diagnoses of plantar fasciitis and shin splints together. See, e.g., "plantar fasciitis and shinsplints (sic)," VA outpatient records, April 2015; plantar fasciitis and shin splints or fibular pain, November 2014, June 2014, March 2013, November 2013 (podiatry note linking plantar fasciitis to inflammation in peroneal (fibular) tendons), May 2013 (discussion of cast applications to reduce shin, ankle, foot pain). The Veteran testified, at his December 2015 hearing, that he had, in essence, experienced shin pain intermittently, but chronically, since his service. The Veteran's testimony is credible on this point. Regarding the other claims above, it is important for the Veteran to understand that they generally involved medical causation determinations, not credibility issues. 4. Claim for service connection for right eye injury residuals The Veteran's service treatment records disclose that he reported trauma to the right eye in October 1983. The Veteran was hospitalized for swelling of the right eye (hyphema) and complaints of pain and photophobia. Service separation examination in 1985 reflects that the Veteran reported that he still had "burning" of the right eye. In an October 1985 application for compensation, the Veteran sought service connection for a right eye disability. At that time, the Veteran reported that he was hit with a blank round in the right eye in service. December 1985 VA examination disclosed uncorrected near vision of 20/70 in the right eye. Visual field examination, intra-ocular pressure examination, funduscopic examination, and slit lamp examination disclosed no abnormality. The examiner concluded that there were no physical residuals of the Veteran's history of trauma to the right eye. A claim for service connection for residual injury to the right eye was denied in February 1986, and that decision became final. The Veteran's 2008 claim is his first request to reopen that claim, a. New and material to reopen claim for residuals, right eye injury The evidence received since the 1986 rating decision, the prior final decision on this issue, includes more than one thousand pages of additional VA clinical records, the Veteran's testimony, and reports of VA examinations. The Veteran's service treatment records confirm that he sustained an injury to the right eye, which required hospitalization, so his lay contentions that he had had continuous eye pain since that time, and current VA examination reports confirming complaints of eye pain, raise the possibility that the Veteran has a current residual of a right eye injury. The Veteran has been afforded VA examination, and voluminous VA treatment records have been obtained. The Veteran has not identified any other relevant records. Review on the merits may proceed. b. Claim for right eye injury residuals, on the merits VA outpatient treatment records dated in May 2004 reflect that the Veteran reported continued eye pain and photophobia, and was unable to tolerate a camera flashing in the right eye. He complained of blurring of vision. Eyeglasses were prescribed. Evaluation in April 2103 resulted in a diagnosis of dry eyes (bilaterally), and artificial tears were prescribed. On VA examination conducted in July 2015, the examiner assigned three diagnoses, right eye injury, bilateral cataracts, and bilateral dry eye syndrome. The Veteran's corrected distance vision and corrected near vision was 20/40 or better in each eye. The examiner concluded that the Veteran had a history of in-service injury to the right eye, without observable residuals or functional impairment. The examiner found no scarring of the right eye. The examiner explained that the Veteran's corrected vision was about the same in both eyes, his cataracts were bilateral, and his dry eye syndrome was bilateral. The examiner noted that each of those disorders was progressive with age. The examiner also opined that it was unlikely that an injury to one eye would cause bilateral cataracts or bilateral dry eye syndrome. At his December 2015 hearing before the Board, the Veteran testified that his right eye continued to be very sensitive, especially to light, since the in-service injury to the right eye. The Veteran's testimony is credible. However, no examiner or provider has indicated, in the voluminous VA treatment records, in the VA treatment records specific to evaluation of the eyes, or on VA eye examinations, that there was any objective evidence of photophobia or other subjective complaint attributed to the right eye injury. The treating providers and the VA examiners have consistently stated that no objective evidence of the confirmed right eye injury has been found, which only provides evidence against this claim. No objective pathology underlying right eye photophobia of other subjective residual of an eye injury has been identified. There is no factual basis on which the Veteran may be awarded service connection for subjective right eye light sensitivity in the absence of objective right eye pathology. The Board notes that, if objective examinations confirm right eye residuals of the right eye injury in service, or pathology in the right eye underlying light sensitivity is identified, the Veteran may again seek service connection for residuals of his in-service right eye injury. Again, this is a medical issue. Duties to assist and notify The Veteran was notified of the criteria for service connection for each disability addressed in this appeal, and of the criteria for reopening a claim, in letters issued in February 2008 and in September 2008. Those letters also advised the Veteran of the prior final rating decisions applicable to previously-denied claims. As each of the previously-denied claims have been reopened and addressed on the merits, notices as to requests to reopen claims are sufficient, since the reopening of each claim is favorable to the Veteran. The Veteran does not contend that there is any defect in the notice to him regarding any request to reopen or claim for service connection, nor does such defect appear to the Board from the record. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Service treatment records are associated with the claims file. The Veteran has been afforded VA examination as to each claim for service connection and reopened claim for service connection denied in this decision. More than 1000 pages of VA treatment records are associated with the claims files, in addition the VA examinations. The Veteran provided statements and identified evidence. He has indicated that he has not received non-VA treatment or benefits. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires an individual who chairs a Veteran's hearing before the Board to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. 23 Vet. App. 488 (2010). In this case, the issues on appeal for which the Veteran had requested a hearing were correctly identified, and the Veteran's testimony was elicited at the hearing. The duties under 38 C.F.R. § 3.103 were met at the hearing. As discussed above, the Veteran was afforded an opportunity to have another hearing, so that a transcript could be produced, but he declined. Thus, the Board finds that VA has satisfied the duties to notify and assist the Veteran. No further notice or assistance to the Veteran is required to fulfill VA's duties to assist him to substantiate the claims addressed in this decision. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER The appeal for service connection for hypertension is denied. The request to reopen a claim for service connection for PTSD and a claim for service connection for alcoholism are dismissed without prejudice. The requests to reopen claims for service connection for an acquired psychiatric disability, for a shin disability, and for residuals of a right eye injury are granted; the appeal to reopen the claims is granted to this extent only. The appeal for service connection for an acquired psychiatric disability identified as major depressive disorder is denied. The appeal for service connection for a shin pain disability is granted. The appeal for service connection for residuals of a right eye injury is denied. ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs