Citation Nr: 1606062 Decision Date: 02/17/16 Archive Date: 03/01/16 DOCKET NO. 04-02 543 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for hypertension. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for hypertension, to include as due to exposure to herbicides and/or as secondary to PTSD. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD L. Edwards Andersen, Counsel INTRODUCTION The Veteran had active service from April 1966 to May 1972, and additional duty with the Air National Guard, including the Michigan Air National Guard from May 1972 to February 1974, and the California Air National Guard from February 1978 to October 1980. He is also shown to have served with the Air National Guard in Charlestown, South Carolina from July 1982 through July 1985. This matter comes before the Board of Veterans' Appeals (BVA or Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The matter of new and material evidence to reopen a claim of entitlement to service connection for hypertension comes from a January 2003 rating decision. A notice of disagreement was received in June 2003, a statement of the case was issued in October 2003, and a substantive appeal was received in January 2004. The matter of entitlement to service connection for PTSD comes from a September 2003 rating decision. A notice of disagreement was received in January 2004, a statement of the case was issued in March 2005, and a substantive appeal was received in May 2005. A request for a hearing before a member of the Board at the RO (Travel Board), was withdrawn by the Veteran in April 2006. In June 2008, the Board reopened the claim of entitlement to service connection for PTSD, determined that new and material evidence had not been received to reopen the claim of entitlement to service connection for hypertension, and remanded the issue of service connection for PTSD, for further development. The Veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court). Per a March 2010 Partial Joint Motion for Remand (JMR) and Court Order, the Board's decision, with regard to the determination that new and material evidence had not been received to reopen the claim of entitlement to service connection for hypertension, was vacated and remanded for compliance with instructions in the JMR. In September 2011, the Board remanded the issues to the RO for further development and reajudication. In the September 2011 remand, the Board characterized the Veteran's PTSD claim as one for service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam order) (it is the responsibility of the Board to consider alternate current conditions within the scope of the claim). Thus, the issue has been characterized to encompass potentially pertinent psychiatric disorders, including PTSD. In March 2013, the Board again remanded these claims. The issue of entitlement to service connection for hypertension is again addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Entitlement to service connection for hypertension was denied by the RO in a January 2000 rating decision; the Veteran did not complete a substantive appeal. 2. Some of the evidence received since the January 2000 rating decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim for service connection for hypertension. 3. Resolving all reasonable doubt in favor of the Veteran, the evidence shows that the Veteran has a diagnosis of PTSD with major depressive disorder, there is credible supporting evidence that a claimed in-service stressor occurred, and the medical evidence of record links the diagnosis of PTSD to the in-service stressors. CONCLUSIONS OF LAW 1. The January 2000 rating decision that denied entitlement to service connection for hypertension is final. 38 U.S.C.A. §§ 5109A, 7105 (West 2014); 38 C.F.R. §§ 3.105(a), 3.156, 20.1103 (2015). 2. The evidence received since the January 2000 rating decision is new and material, and the Veteran's claim for service connection for hypertension is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156(a) (2015). 3. The criteria for entitlement to service connection for PTSD with major depressive disorder are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). In this case, the Board is reopening the Veteran's claim for hypertension and granting his claim for PTSD. Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA, cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA resources. II. Whether New and Material Evidence Has Been Received to Reopen a Previously Denied Claim for Entitlement to Service Connection for Hypertension The Veteran seeks to reopen his claim for entitlement to service connection for hypertension. Notwithstanding determinations by the RO that new and material evidence has or has not been received to reopen the Veteran's claim, the Board is required to determine whether new and material evidence has been presented. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (holding that the Board has a legal duty under 38 U.S.C.A. §§ 5108 and 7105, to address the question of whether new and material evidence has been presented to reopen a previously denied claim); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156(a), especially the phrase "raise[s] a reasonable possibility of substantiating the claim," does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App 273, 283 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The record with respect to this claim reflects that a claim for service connection for hypertension was last denied in a rating decision of January 2000. The evidence of record included the Veteran's DD Form 214 which showed service in the Republic of Vietnam. The Veteran did not express timely disagreement or submit new and material evidence within one year and subsequently the January 2000 rating decision became final. Evans v. Brown, 9 Vet. App. 273, 285 (1996). As such, the Veteran's claim for service connection may only be reopened if new and material evidence is submitted. In this instance, since the January 2000 rating decision denied the claim on the basis that there was no evidence that the Veteran's hypertension occurred in or was caused by service, the Board finds that new and material evidence would consist of evidence that the Veteran's hypertension occurred in or was caused by service. The evidence received since the January 2000 rating decision consists of numerous records and documents. Among other things, the Veteran has now asserted that his hypertension is due to exposure to herbicides during service. In the January 2013 Informal Hearing Presentation, the representative contended that "[t]he Board should consider the 2006 Agent Orange Update new and material evidence and reopen the claim for hypertension." The representative referenced the following treatise evidence: "Committee to Review the Health Effects in Vietnam Veterans of Exposure to Herbicides, Institute of Medicine, The National Academy Press, Veterans and Agent Orange Update: 2006 639 (Sixth Biennial Update) (2007), available at http://books.nap.edu/openbook. php/record_id=11906&page=R1. Presuming its credibility, the aforementioned treatise evidence suggests a link between hypertension and exposure to herbicides during service in the Republic of Vietnam. As a result, the Board finds that this additional evidence is neither cumulative nor redundant, and it is material since the evidence raises the possibility of substantiating the claim of service connection for hypertension. See 38 C.F.R. § 3.156(a). The Board determines that the claim is reopened and will remand the claim for further development. III. Entitlement to Service Connection for an Acquired Psychiatric Disorder, to include PTSD The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, to include PTSD. He asserts he experienced traumatic stressors during service that caused his current psychiatric disorder. Establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). In addition, the Board notes that VA has recently amended its adjudication regulations governing service connection for posttraumatic stress disorder by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or in whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board finds the requirements for service connection have been met. First, the Board notes that the Veteran's stressors have been conceded. The Veteran reports being exposed to rocket attacks during service. Personnel records indicate that the Veteran's unit was stationed at Nha Trang Air Force Base from March 1970 to March 1971 and the records also verify that Nha Trang Air Force Base received numerous attacks during the time the Veteran was stationed at the base. Therefore, the Veteran's stressors are conceded. See April 2010 PTSD Stressor Verification Review Memorandum. However, the Board finds that there are conflicting opinions as to whether the Veteran has a current diagnosis of PTSD. Medical records have been reviewed. The Veteran's service treatment records reflect that he was seen on numerous occasions for physical complaints; however, there were no psychiatric complaints or findings noted and no indication that he was troubled by any duties or events to which he was exposed in Vietnam. His service separation examination was normal for psychiatric disorders. Post service, the Board notes that the Veteran has a history of mental health treatment. The Veteran filed his initial claim for service connection in April 1999, claiming to have had PTSD. He indicated that he had received post-service medical treatment for PTSD. The Veteran was afforded a VA examination in November 1999. After examination, the Veteran was diagnosed with chronic, mild depression. The examiner stated PTSD could not be diagnosed because the Veteran failed to produce any PTSD type of complaints, other than mild sleep disturbance. The Veteran's treating VA psychologist submitted a statement in July 2001. The psychologist noted that during service the Veteran was stationed at Nha Trang and he was exposed to hostile fire when the base came under rocket attack. The psychologist noted that the Veteran manifested symptoms of severe depression, nightmares and intrusive thoughts of Vietnam. The Veteran also experienced disrupted sleep, averaging 4 to 5 hours per night in 1 to 2 hour segments. The psychologist stated that the Veteran was hyperalert and unexpected noises triggered anxiety. The psychologist reported that the Veteran had been unable to function occupationally and had been unemployed for several years. The Veteran seldom left his home, to avoid crowds he shopped at night and his lack of personal hygiene indicated severe anhedonia. The Veteran was also listless, dull, withdrawn, and lacked energy. The Veteran was diagnosed with PTSD and major depressive disorder. In October 2002, the Veteran's treating private physician submitted a statement indicating that the Veteran was being treated for PTSD stemming from his experiences in the Vietnam War. See October 2002 statement from Dr. H. The Veteran was afforded a VA examination in November 2002. After examination, the Veteran was diagnosed with major depression. The examiner stated that he did not "see enough to make the diagnosis" of PTSD, however, no further explanation was provided. Additionally, no medical opinion was provided regarding the etiology of the Veteran's diagnosed major depression. The Veteran was afforded a VA examination in April 2006. After examination, the Veteran was diagnosed with depressive disorder, not otherwise specified. The examiner stated that he was unable to diagnose PTSD, although there were "probably some PTSD features." No medical opinion was given regarding the etiology of the diagnosed depressive disorder. The Veteran's treating psychiatrist submitted a statement in October 2006 indicating that the Veteran was diagnosed with major depressive disorder and PTSD. The psychiatrist noted that the Veteran was a Vietnam Veteran. The Veteran was afforded a VA examination in January 2012. After examination, the Veteran was diagnosed with major depressive disorder. The examiner opined that the Veteran's major depressive disorder was not due to his time in service, but offered no further explanation or rationale. The examiner stated that the Veteran did not meet the criteria for PTSD because the Veteran's description of his reactions to the reported stressors did not meet the criteria for a PTSD diagnosis. The examiner noted that the Veteran stated he and others were kept back from the site of the rocket attacks and he did not participate in rescue nor did he observe the wounded or deceased from the event. Importantly, however, the Board notes in Pentecost v. Principi, 16 Vet. App. 124 (2002), the Court held that a Veteran need not corroborate his actual physical proximity to (or firsthand experience with), and personal participation in, rocket attacks while stationed in Vietnam. See also Suozzi v. Brown, 10 Vet. App. 307 (1997) (holding that "corroboration of every detail [of a claimed stressor] including the Veteran's personal participation" is not required. An addendum opinion was obtained in June 2013. The examiner noted that the Veteran denied any mental illness symptoms or pressing issues at the time of his separation from the service, including depression and anxiety symptoms. The examiner stated that the Veteran failed to meet criterion A - that he was exposed to a traumatic event. The Board notes, however, that the Veteran's stressors have been conceded. The Veteran's treating psychiatrist submitted a statement in June 2014. The psychiatrist stated that the Veteran continues to endorse symptoms of PTSD and his exposure to traumatic events was while serving in the U.S. Air Force during Vietnam. The psychiatrist stated that the Veteran's symptoms include exposure to actual death, witnessing, in person, the events as they occurred to others (Criteria A2); recurrent, involuntary, and intrusive distressing memories of the traumatic events (Criteria B1), recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic events (Criteria B2), dissociative reactions (flashbacks) in which the individual feels or acts as if the traumatic events were recurring (Criteria B3), intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic events (Criteria B4); persistent avoidance of stimuli associated with the traumatic events, including efforts to avoid distressing memories, thoughts, or feelings about the traumatic events (Criteria Cl) and external reminders that arouse distressing memories about the traumatic events (Criteria C2); negative alterations in cognitions and mood associated with the traumatic events, including persistent and exaggerated negative beliefs or expectations about oneself, others, or the world (Criteria Dl), persistent negative emotional state (Criteria D4), markedly diminished interest or participation in significant activities (Criteria D5), feelings of detachment or estrangement from others (Criteria D6), and persistent inability to experience positive emotions (Criteria D7); marked alterations in arousal and reactivity associated with the traumatic events, including hypervigilance (Criteria E3), exaggerated startle response (Criteria E4), and sleep disturbance (Criteria E6). The duration of the disturbance is more than 1 month (Criteria F), the disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning (Criteria G), and is not attributable to the physiological effects of a substance (Criteria H). The psychiatrist concluded by stating the Veteran clearly meets the criteria for PTSD, and has had symptoms of this for over 40 years now. In this case, the Board finds that the evidence is at least evenly balanced. In view of the totality of the evidence, the Board finds the Veteran's treating psychologist and psychiatrists assessments, particularly those from July 2001 and June 2014 indicating a diagnosis of PTSD with severe depression as a result of his time in service, are at least as persuasive as the VA examinations that do not diagnose PTSD or find that his major depressive disorder is due to service. While several VA examinations have not diagnosed PTSD, the July 2001 and June 2014 assessments appear to be very thorough and complete and not only diagnose the Veteran with PTSD with depression, but link his diagnosis to his experiences during service. In summary, the Veteran's stressors have been conceded and the Veteran has a current diagnosis of PTSD, which has been linked to his stressors that occurred during service. Therefore, upon resolution of every reasonable doubt in the Veteran's favor, the Board concludes that service connection is warranted for PTSD with major depressive disorder. ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for hypertension; to this extent, the appeal is granted. Entitlement to service connection for PTSD with major depressive disorder is granted. REMAND The claim for entitlement to service connection for hypertension has been reopened. In light of the evidence presented, additional clinical information is necessary. The Veteran has asserted that his hypertension had an onset during service, and alternatively, that his hypertension is secondary to exposure to herbicides. See January 2013 statement. The Veteran has been afforded several VA examinations for his hypertension. During the November 1999 VA examination, the examiner noted that the Veteran had a current diagnosis of hypertension. The examiner stated that the Veteran had slightly elevated blood pressure at his separation examination, but did not receive treatment for hypertension until 1983. No medical opinion was given regarding the onset or etiology of the Veteran's hypertension. Similarly, during a VA examination in November 2002, the examiner noted a June 1982 Reserves examination where the Veteran's blood pressure was 130/84, but stated that there was no documentation of treatment prior to 1983. No medical opinion regarding the onset or etiology of the Veteran's hypertension was given. Furthermore, to date, a medical opinion has not yet been obtained as to whether the Veteran's hypertension is causally or etiologically due to exposure to herbicides. Finally, as a result of this Board decision, the Veteran had been granted service connection for PTSD with major depressive disorder. When determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). To date, a medical opinion has not yet been obtained regarding whether the Veteran's hypertension is proximately due to or aggravated by his PTSD. On remand, a medical opinion must be obtained pertaining to the nature, onset and etiology of the Veteran's current hypertension. The examiner should also offer comments and an opinion on the possible relationship between the Veteran's hypertension, his exposure to herbicides during service, and/or service-connected PTSD with major depressive disorder. Accordingly, the case is REMANDED for the following action: 1. Obtain a medical opinion regarding the Veteran's hypertension. The claims file must be reviewed by the examiner, and the opinion should reflect that the claims file was reviewed. If the examiner determines that an examination is needed, the Veteran should be scheduled for a VA examination. All indicated testing must be conducted. The examiner is advised that the Veteran is presumed to have been exposed to herbicides during his service in the Republic of Vietnam. In light of the foregoing, the examiner should provide an opinion on the following: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is causally or etiologically related to in-service herbicide exposure?* b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension had an onset during service, within one year of discharge from service, or is otherwise causally or etiologically due to service, to include the documented elevated blood pressure readings during service? c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is caused by OR aggravated (beyond a natural progression) by his PTSD with major depressive disorder? * The Board is cognizant that there is no VA presumption of service connection for hypertension as due to herbicide exposure. The Agent Orange Updates speak to associations between exposure to chemicals and health outcomes in human populations, and not to the likelihood that any individual's health problem is associated with or caused by the herbicides in question. Thus, the question here is in light of the 2006 Update, NAS elevation of hypertension to the "Limited or Suggestive Evidence" category, what is the likelihood that this Veteran's hypertension is related to his herbicide exposure given his medical history, family history, risk factors, etc. All opinions must be supported by a clear rationale. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case, e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc. If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion. 2. After all of the above actions have been completed, readjudicate the claim. If the claim remains denied, issue to the Veteran and his representative a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. 3. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs