Citation Nr: 1606320	
Decision Date: 02/19/16    Archive Date: 03/01/16

DOCKET NO.  13-30 831	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of service connection for hypertension.

2.  Whether new and material evidence has been received to reopen a claim of service connection for diabetes.

3.  Whether new and material evidence has been received to reopen a claim of service connection for a right leg disability.

4.  Whether new and material evidence has been received to reopen a claim of service connection for stroke.

5.  Entitlement to service connection for a psychiatric disability, diagnosed as depressive disorder, to include as secondary to service-connected tinnitus and/or service-connected eczema.

6.  Entitlement to service connection for obstructive sleep apnea, to include as secondary to a psychiatric disability.

7.  Entitlement to service connection for cerebral aneurysm.

8.  Entitlement to service connection for a bladder disability.

9.  Entitlement to a rating in excess of 10 percent for tinnitus.

10.  Entitlement to an effective date prior to November 19, 2013, for the award of service connection for tinnitus.

11.  Entitlement to a compensable rating for bilateral hearing loss.

12.  Entitlement to an effective date prior to November 19, 2013, for the award of service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	J. Michael Woods, Esq.


ATTORNEY FOR THE BOARD

L. B. Yantz, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from September 1973 to September 1976, with additional Reserve service.  These matters are before the Board of Veterans' Appeals (Board) on appeal from September 2010 and March 2014 rating decisions of the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO).  On the Veteran's September 2013 VA Form 9 (for the claims pertaining to hypertension, a psychiatric disability, and cerebral aneurysm), he requested a hearing before the Board; however, in a written statement received in September 2015, he withdrew his request for such a hearing.  In November 2015, his attorney (on his behalf) submitted additional evidence with a waiver of initial RO consideration.  See 38 C.F.R. § 20.1304 (2015).

The Board notes that the RO reopened the Veteran's claims with regard to diabetes, a right leg disability, and stroke, and decided those claims on the merits.  However, despite the determinations reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim.  See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001).

The Board has rephrased the issue of service connection for a psychiatric disability as listed on the title page, and notes that a claim for a mental health disability includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.  See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009).  Under the holding in Clemons, the Board finds that the instant decision applies to - and resolves - all pending claims of service connection for a psychiatric disability, however diagnosed.

The issues of service connection for a heart disability (in an April 2012 written statement) and service connection for a bilateral knee disability (in an August 2013 written statement) have been raised by the record as noted, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2015); see 79 Fed. Reg. 57,660 (Sept. 24, 2014) (codified in 38 CFR Parts 3, 19, and 20 (2015)).

The issues of service connection for hypertension (on de novo review), whether new and material evidence has been received to reopen a claim of service connection for diabetes, whether new and material evidence has been received to reopen a claim of service connection for a right leg disability, whether new and material evidence has been received to reopen a claim of service connection for stroke, service connection for obstructive sleep apnea, service connection for cerebral aneurysm, service connection for a bladder disability, an increased rating and earlier effective date for tinnitus, and an increased rating and earlier effective date for bilateral hearing loss are being remanded to the AOJ.  VA will notify the Veteran if action on his part is required.


FINDINGS OF FACT

1.  An unappealed May 2009 rating decision denied the Veteran service connection for hypertension (claimed as high blood pressure), finding in essence that there was no evidence that his hypertension was incurred in service (or within one year of discharge) or related to his service.  The claim was previously denied in August 2008, based upon a finding that his hypertension was not incurred in service (or within one year of discharge) or related to his service.

2.  Evidence received since the May 2009 rating decision suggests that the Veteran had hypertension while on active duty in 1973 and continuously thereafter; relates to an unestablished fact necessary to substantiate the claim of service connection for hypertension, and raises a reasonable possibility of substantiating such claim.

3.  It is reasonably shown that the Veteran's currently diagnosed depressive disorder was caused or aggravated by his service-connected tinnitus and his service-connected eczema.


CONCLUSIONS OF LAW

1.  New and material evidence has been received, and the claim of service connection for hypertension may be reopened.  38 U.S.C.A. §§ 5108, 7105(c) (West 2014); 38 C.F.R. § 3.156(a) (2015).

2.  Service connection for a psychiatric disability, diagnosed as depressive disorder, as secondary to service-connected tinnitus and service-connected eczema, is warranted.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.102, 3.303, 3.310 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant claims outlined below.  However, inasmuch as this decision reopens the claim of service connection for hypertension, and grants the claim of service connection for a psychiatric disability, there is no reason to belabor the impact of the VCAA on these matters; any notice or duty to assist omission is harmless with regard to these matters.

Legal Criteria, Factual Background, and Analysis

The Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims being decided.

Reopening Claim of Service Connection for Hypertension

A claim which is the subject of a prior final rating decision may be reopened if new and material evidence is received.  38 U.S.C.A. §§ 5108, 7105.

New and material evidence is defined by regulation.  See 38 C.F.R. § 3.156.  New evidence means evidence not previously submitted to agency decision-makers.  Material evidence is 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 establishing the claim.  38 C.F.R. § 3.156(a).

The Court has held that the phrase 'raises a reasonable possibility of establishing the claim' must be viewed as enabling rather than precluding reopening.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Initially, an August 2008 rating decision denied the Veteran's claim of service connection for hypertension (claimed as high blood pressure) essentially on the finding that his hypertension was not incurred in service (or within one year of discharge) or related to his service.  While the Veteran did not appeal the August 2008 rating decision, such rating decision remained open because original service treatment records were thereafter associated with the record (in September 2008).  See 38 C.F.R. § 3.156(c).  Thereafter, a May 2009 rating decision confirmed the August 2008 determination, once again finding in essence that there was no evidence that his hypertension was incurred in service (or within one year of discharge) or related to his service.  He was furnished notice of the May 2009 determination and of his appellate rights, and the May 2009 rating decision became final when he did not appeal that decision or submit new and material evidence within one year following notice.  See 38 U.S.C.A. § 7105; 38 C.F.R. § 3.156.

Evidence received since the May 2009 rating decision includes a September 2013 VA Form 9 submitted by the Veteran, wherein he noted as "fact" that he had "high blood pressure while on active duty in 1973 and [I] continue[d] to have [such] problem after my release from active duty and transferred to the active reserve."

As service connection for hypertension was previously denied on the basis that there was no evidence that his hypertension was incurred in service (or within one year of discharge) or related to his service, for evidence to be new and material in the matter, it would have to be evidence not previously of record that tends to show that his hypertension was incurred in service (or within one year of discharge) or related to his service.  The aforementioned evidence indicates that he has had continuity of symptomatology of hypertension since his active service.  For purposes of reopening, it is deemed credible.  It relates to an unestablished fact necessary to substantiate the claim of service connection for hypertension, and raises a reasonable possibility of substantiating that claim (particularly in light of the low threshold standard for reopening endorsed by the Court in Shade, supra).  Therefore, the additional evidence received is both new and material, and the claim of service connection for hypertension may be reopened.  38 U.S.C.A. § 5108.

Service Connection for a Psychiatric Disability

Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Diseases diagnosed after discharge may be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Establishing service connection requires evidence of: (1) a current disability; (2) a disease; injury, or event in service; and (3) a nexus between the claimed disability and the disease, injury, or event in service and the present disability.  See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, or aggravated by a service-connected disease or injury.  Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) that the current disability was either caused or aggravated by the already service-connected disability.  38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may include statements conveying sound medical principles found in medical treatises.  Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or 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).

The Veteran's service treatment records (to include his May 1976 service separation examination) do not note any complaints, findings, diagnoses, or treatment pertaining to a psychiatric disability.  His DD Form 214 does not document any medals indicative of combat participation.  While the Veteran asserted (on a November 2009 questionnaire) that he currently had nightmares and night sweats due to two alleged in-service accidents (i.e., falling down a flight of stairs during basic training in September 1973, and the truck he was riding in getting rear-ended by another vehicle in May 1980), VA informed the Veteran in a January 2010 letter and a February 2010 memorandum that these stressor events could not be verified.

Post-service VA treatment records document the Veteran's treatment for posttraumatic stress disorder (PTSD), anxiety, and depressive disorder.

On a Mental Disorders Disability Benefits Questionnaire (DBQ) completed by a private psychologist in January 2015, it was noted that the Veteran had an Axis I diagnosis of "Depressive Disorder Due to Another Medical Condition With Mixed Features."  In a contemporaneous January 2015 written summary of the assessment, the private psychologist noted that the Veteran's service-connected disabilities of tinnitus and eczema "continue to manifest as a depressive disorder" and went on to opine that "the tinnitus and eczema have caused the depressive disorder."  For rationale, the private psychologist cited to research studies, one of which "confirm[s] the existence of neural circuits that are activated both in depression and tinnitus" and another which notes that "individuals with medical issues and depressive disorder debilitation became disabled due to the holistic effect of medical and psychiatric disturbance...just like the tinnitus, eczema and secondary depressive disorder endured by [the Veteran], renders him incapacitated."  The private psychologist concluded with the following opinion: "It is the belief of this examiner, based on interview and the C-File[,] that [the Veteran's] tinnitus and eczema are more likely than not aggravating his depressive disorder due to another medical condition, with mixed features."

On longitudinal review of the evidence, the Board finds that the competent evidence of record reasonably shows that the Veteran's current depressive disorder was caused or aggravated by his service-connected tinnitus and his service-connected eczema.  See 38 C.F.R. § 3.310.  The most probative evidence of record (i.e., the medical opinion by the private psychologist in January 2015 - which the Board finds no reason to question, as such opinion is supported by adequate rationale) supports that there is a nexus between the Veteran's current psychiatric disability (depressive disorder) and his service-connected tinnitus and his service-connected eczema, and there are no opinions of record to the contrary.  Resolving reasonable doubt in the Veteran's favor (as mandated by law under 38 C.F.R. § 3.102), the Board concludes that competent medical evidence (i.e., an opinion by a medical professional) supports a finding that the Veteran's currently diagnosed depressive disorder was caused or aggravated by his service-connected tinnitus and his service-connected eczema.  Accordingly, secondary service connection for a psychiatric disability, diagnosed as depressive disorder, is warranted.  [As outlined above in the Introduction, the Board notes that a claim for a mental health disability includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.  See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009).  Under the holding in Clemons, the Board finds that the instant decision applies to - and resolves - all pending claims of service connection for a psychiatric disability, however diagnosed.]


ORDER

The appeal to reopen a claim of service connection for hypertension is granted.

Service connection for a psychiatric disability, diagnosed as depressive disorder, as secondary to service-connected tinnitus and service-connected eczema, is granted.


REMAND

On review of the record, the Board has found that further development is needed for VA to fulfill its duties mandated under the VCAA.

As an initial matter, regarding all of the claims remaining on appeal, the record reflects that the Veteran has been granted Social Security Administration (SSA) disability benefits (as shown by VA's SSA Inquiries beginning in September 2008), but there is no evidence of record to indicate which disability(ies) this award was based upon.  A request to SSA for a complete set of records pertaining to the Veteran, including any decision(s) and all medical evidence considered in making the decision(s), is necessary.  See Murincsak v. Derwinski, 2 Vet. App. 363 (1992).

In addition, regarding the reopened claim of service connection for hypertension (now on de novo review), the Veteran contends that his current hypertension began in service and has persisted since that time.  His active duty service treatment records do not note any complaints, findings, diagnoses, or treatment pertaining to hypertension, and his blood pressure was noted to be 110/68 on his May 1976 service separation examination.  However, he noted on a September 1996 Report of Medical History during his Reserve service that he was presently taking medications for high blood pressure, and an August 1997 Reserve service treatment record documented his treatment for heat exhaustion [which was found to be incurred in the line of duty during active duty for training, according to an August 1997 Line of Duty Determination] while noting a past medical history of hypertension.  On remand, the Veteran should be afforded a VA examination with medical opinion addressing any relationship between his current hypertension and any incident of his military service.

Furthermore, regarding the claim of service connection for obstructive sleep apnea, the Board notes that on a Sleep Apnea DBQ completed by a private physician in November 2015, it was noted that the Veteran had a diagnosis of obstructive sleep apnea based upon a sleep study performed at the East Alabama Medical Center Sleep Disorders Center on April 12, 2010.  [The private physician went on to opine that the Veteran's depression aided in the development of - and permanently aggravated - his obstructive sleep apnea.]  At present, this April 2010 private sleep study is not of record, and there is no medical evidence of record to confirm a diagnosis of obstructive sleep apnea for the Veteran.  On remand, a copy of the April 2010 private sleep study must be secured.

Finally, regarding the claim of service connection for cerebral aneurysm, the Veteran contends that the cerebral aneurysm he suffered post-service in January 2007 was due to heat exhaustion incurred in the line of duty during active duty for training in August 1997.  His active duty service treatment records (to include his May 1976 service separation examination) do not note any complaints, findings, diagnoses, or treatment pertaining to cerebral aneurysm or a head disability.  However, an August 1997 Reserve service treatment record documented his treatment for heat exhaustion, and an August 1997 Line of Duty Determination noted that he had a near syncope episode secondary to heat exhaustion which was incurred in the line of duty during active duty for training.  In a July 2007 statement, someone who had served in the Reserves with the Veteran stated that the Veteran was admitted to Forrester General Hospital in Mississippi (and was kept there for 24 hours) after his heat stroke during Reserve service.  On remand, all available records pertaining to the Veteran from Forrester General Hospital should be secured, and the Veteran should be afforded a VA examination with medical opinion addressing any relationship between his current residuals of cerebral aneurysm and any incident of his military service.

Accordingly, the case is REMANDED for the following actions:

1.  Ask the Veteran to identify the provider(s) of any additional (records of which are not already associated with the record) treatment or evaluation he has received for his claimed disabilities, and to provide all releases necessary for VA to secure any private records of such treatment or evaluation.  Obtain complete records of all such treatment and evaluation from all providers identified (to specifically include a copy of the Veteran's April 12, 2010 sleep study from East Alabama Medical Center Sleep Disorders Center, as well as all available records from Forrest General Hospital in Mississippi in approximately August 1997).  In addition, specifically secure complete copies of the clinical records of all updated (to the present) VA treatment and evaluation the Veteran has received for his claimed disabilities since October 2012.

2.  Secure for the record from SSA complete copies of all records pertaining to the Veteran's award of SSA disability benefits, including any decision(s) and all medical evidence considered in making the decision(s).  If such is provided by disc, then print out the records and associate the copies with the record.  Any negative search result is to be noted in the record and communicated to the Veteran.

3.  If, and only if, a copy of the April 12, 2010 private sleep study cannot be obtained, please arrange for an appropriate sleep apnea examination of the Veteran to ascertain the nature and likely etiology of any sleep apnea diagnosed.  The Veteran's entire record must be reviewed by the examiner in conjunction with the examination.  Any indicated tests or studies must be completed.  Based on review of the record and examination of the Veteran, the examiner must provide opinions that respond to the following:

(a) Please indicate whether the Veteran carries a diagnosis of sleep apnea; and

(b) If so, please identify the most likely etiology for the Veteran's sleep apnea.  Specifically, the examiner must opine as to whether it is at least as likely as not (a 50% or better probability) that such disability is related to:

(i) any event, injury or disease in service; or
(ii) is caused or aggravated by a service-connected disability, to include depression.

The examiner must provide a detailed history or etiology and explain the rationale for all opinions, citing to relevant service treatment records, supporting factual data, medical literature, and prior medical opinions, as appropriate.

4.  Arrange for an appropriate examination of the Veteran to ascertain the nature and likely etiology of his current hypertension and cerebral aneurysm.  [If two different examinations are necessary to evaluate these disabilities separately, then such should be scheduled.]  The Veteran's entire record must be reviewed by the examiner in conjunction with the examination.  Any indicated tests or studies must be completed.  Based on review of the record and examination of the Veteran, the examiner must provide opinions that respond to the following:

(a) Please identify the most likely etiology for the Veteran's hypertension.  Specifically, the examiner must opine as to whether it is at least as likely as not (a 50% or better probability) that such disability is related to any event, injury or disease in service, to include treatment for heat exhaustion incurred in the line of duty during active duty for training in August 1997.  The examiner should consider and discuss as necessary the Veteran's report in 1996 that he was taking medication for high blood pressure.

(b) Please identify all current residuals of the Veteran's January 2007 cerebral aneurysm, as well as the most likely etiology for his cerebral aneurysm.  Specifically, the examiner must opine as to whether it is at least as likely as not (a 50% or better probability) that such disability is related to any event, injury or disease in service, to include treatment for heat exhaustion incurred in the line of duty during active duty for training in August 1997.

The examiner must provide a detailed history or etiology and explain the rationale for all opinions, citing to relevant service treatment records, supporting factual data, medical literature, and prior medical opinions, as appropriate.

5.  The AOJ should ensure that all of the development sought is completed, arrange for any further development suggested by any additional evidence received, and then review the record and readjudicate the claims remaining on appeal.  If any benefit sought remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his attorney the opportunity to respond.  The case should then be returned to the Board.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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).




______________________________________________
M. C. GRAHAM
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs