Citation Nr: 1607324 Decision Date: 02/25/16 Archive Date: 03/04/16 DOCKET NO. 14-24 063A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for posttraumatic stress disorder, to include whether a claim for service connection should be reconsidered. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hypertension. 3. Entitlement to service connection for posttraumatic stress disorder. 4. Entitlement to service connection for hypertension, to include as secondary to posttraumatic stress disorder and as due to Agent Orange exposure. 5. Entitlement to service connection for ischemic heart disease. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and His Wife ATTORNEY FOR THE BOARD Avery M. Schonland, Associate Counsel INTRODUCTION The Veteran had active service from October 1968 through May 1970, with service in Vietnam from May 1969 through May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2008 and January 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The August 2008 decision denied service connection for posttraumatic stress disorder (PTSD) and hypertension. The January 2012 rating decision denied service connection for PTSD, hypertension, and ischemic heart disease. In September 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. At that September 2015 hearing, subsequent to the RO's June 2014 statement of the case (SOC), the Veteran submitted the most recent VA treatment records in support of his claim, with a waiver to allowing the Board's initial review of this new evidence. 38 C.F.R. § 20.1304. In October 2015, the Veteran submitted a copy of a March 2013 hypertension disability benefits questionnaire (DBQ). The VA received this hypertension DBQ, following the June 2014 SOC and September 2014 certification of the case to the Board. Referral to the RO of evidence received directly by the Board is generally required. 38 C.F.R. § 20.1304. Neither the Veteran nor his representative has submitted a waiver in connection with this hypertension DBQ. However, it is merely duplicative of evidence already of record and considered by the RO. The Veteran originally submitted this March 2013 hypertension DBQ in September 2013. Therefore, no written waiver is required. See Vogan v. Shinseki, 24 Vet. App. 159, 167 (2010). This case consists entirely of documents in the Veterans Benefits Management System (VBMS) and Virtual VA. The Board has reviewed all relevant documents in VBMS. Any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The Veteran's Virtual VA file includes VA treatment records, and the RO reviewed these treatment records in a June 2014 SOC. Otherwise, all documents in Virtual VA are duplicative of the documents in VBMS. The underlying merits of the issue of entitlement to service connection for hypertension are addressed in the REMAND portion of the decision below and this issue is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an August 2008 rating decision, the RO denied service connection for PTSD and hypertension. The Veteran did not appeal that rating decision or submit new and material evidence within one year. 2. Since the August 2008 rating decision, service personnel records relevant to the claim of entitlement to service connection for PTSD, but not relevant to the claim of entitlement to service connection for hypertension, have been associated with the VBMS file. 3. Resolving all reasonable doubt in favor of the Veteran, there is a current diagnosis of PTSD that is based upon a verified in-service stressor. 4. The evidence received since the August 2008 rating decision is not cumulative or redundant of the evidence of record at the time of that denial of entitlement to service connection for hypertension, and relates to an unestablished fact necessary to substantiate that claim. 5. On September 14, 2015, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant on the record at his Board hearing that he wanted to withdraw the issue of entitlement to service connection for ischemic heart disease. CONCLUSIONS OF LAW 1. The portion of the August 2008 rating decision denying service connection for PTSD is not final. 38 U.S.C.A. §§ 7105(b)(1), 7105(c), 7105(d)(3) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.302, 20.1103 (2008). 2. The portion of the August 2008 rating decision denying service connection for hypertension is final. 38 U.S.C.A. §§ 7105(b)(1), 7105(c), 7105(d)(3) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.302, 20.1103 (2008). 3. The issue of entitlement to service connection for PTSD is reconsidered. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2015). 4. The criteria for the establishment of entitlement to service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 3.326(a) (2015). 5. Evidence submitted to reopen the claim of entitlement to service connection for hypertension is new and material, and the claim is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 6. The criteria for withdrawal have been met regarding the issue of entitlement to service connection for ischemic heart disease. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the petition to reopen a claims of entitlement to service connection for PTSD and hypertension, because the PTSD claim is reconsidered and granted, and the hypertension claim is reopened and remanded for further development, VA's duties to notify and assist are deemed fully satisfied. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2015). PTSD The Veteran's claim for service connection of PTSD was previously considered and denied in an August 2008 rating decision. As such, the RO has adjudicated this issue as whether new and material evidence has been filed to reopen the claim. However, despite the prior final decision, a claim will be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a), (b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). As such, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. Following the August 2008 rating decision, the RO received the Veteran's service personnel records in January 2009. At the time of the August 2008 rating decision the Veteran's DD 214 showed service in Vietnam from May 1969 through May 1970 and that his military occupational specialty as that of a memorial specialist. The service personnel records received in January 2009 further show that the Veteran worked under this military occupational specialty while deployed to Vietnam, thereby verifying his stressor. These records are relevant to his claim for service connection for PTSD. Therefore, 38 C.F.R. § 3.156(c) applies, the August 2008 rating decision is not final with respect to the issue of entitlement to service connection for PTSD; and the claim will be reconsidered on the merits. 38 C.F.R. § 3.156(c)(1). The Veteran seeks service connection for PTSD based upon his service in Vietnam. Specifically, he contends that his PTSD is due to his experience in Vietnam as a mortician. He has consistently described seeing dead bodies, and that he currently re-experiences these stressors in nightmares. Having carefully considered the claim in light of the record and the applicable law, the Board finds that the criteria for service connection of PTSD have been met and the appeal will be allowed. In order to establish entitlement to service connection for any disability on a direct basis, the record must contain: (1) the existence of a present disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD similarly requires (1) medical evidence establishing a diagnosis of the disorder, (2) credible supporting evidence that the claimed in-service stressor occurred, and (3) a link established by medical evidence between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). The PTSD diagnosis must be made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-V). 38 C.F.R. § 3.304(f); 38 C.F.R. § 4.125(a). There are several avenues to document an in-service stressor, other than obtaining verification from the JSRRC or other government records repository. In cases of in-service PTSD diagnosis, combat service, or prisoner of war status a Veteran's stressor may be verified by lay evidence. 38 C.F.R. § 3.304(f)(1), (2), (4). Lay evidence of personal assault requires appropriate corroboration, and a stressor related to a Veteran's fear of hostile military or terrorist activity requires appropriate medical evidence. 38 C.F.R. § 3.304(f)(3), (5). In the case of any veteran who has engaged in combat with the enemy, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. Every reasonable doubt shall be resolved in favor of such veteran. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). If there is no combat experience, or if there is a determination that the veteran engaged in combat but the claimed stressor is not related to such combat, there must be independent evidence to corroborate the veteran's statement as to the occurrence of the claimed stressor. Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). The veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). First, the Board finds that the Veteran's stressors have been independently corroborated. Again, the Veteran alleges that his experience in Vietnam as a mortician has caused his PTSD. His service personnel records and DD 214 document that he served in Vietnam from May 1969 through May 1970, and that his military occupational specialty was that of a memorial specialist, the equivalent of a civilian morgue man. The Veteran's military occupational specialty of a memorial specialist as listed on his DD 214 supports his contention that he saw dead bodies as part of job while in service, and his service personnel records verify that he held this job while deployed to Vietnam. This claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service in Vietnam as a morgue man. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.304(f). Accordingly, there is a verified stressor. Second, the Board notes the Veteran's confirmed diagnosis of PTSD. The Veteran sought regular VA treatment for PTSD, including psychotherapy sessions and medication management with a staff psychiatrist, as well as group therapy with a VA licensed psychologist. The VA staff psychiatrist initially diagnosed PTSD in November 2013. The VA licensed psychologist led the Veteran's PTSD 101 group from June 2015 through September 2015. Although the assessment was not as detailed as a comprehensive VA examination, the VA staff psychiatrist discussed the criteria for PTSD diagnosis under DSM-V. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997). He addressed all of the applicable criteria. Additionally, the VA staff psychiatrist who diagnosed the Veteran's PTSD in November 2013 noted the Veteran's verified stressor, continuing nightmares, exaggerated startle response, hypervigilance, and avoidance of crowds and loud noises. The VA staff psychiatrist came to same conclusion, a PTSD diagnosis based on the Veteran's experiences in Vietnam, at each psychotherapy session from the initial diagnosis in November 2013 through June 2015. The licensed psychologist leading the Veteran's PTSD 101 group concurred with this diagnosis. Taking the evidence in the light most favorable to the Veteran, this diagnosis made in reliance on the verified stressor fulfills the final requirement for service connection of PTSD. 38 C.F.R. § 3.304. Although it is not clear that the VA staff psychiatrist reviewed any personnel records, the opinion was based upon an accurate portrayal of the Veteran's service, to include his experiences as a mortician in Vietnam. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that a central issue in determining the probative value of an examination is whether the examiner was informed of the relevant facts in rendering a medical opinion). The VA staff psychiatrist took a detailed history consistent with the Veteran's in-service experience and his alleged stressors, as well as conducted examinations of the Veteran. The Board finds the VA diagnosis and opinion of significant probative value as each is derived from a factually accurate, fully articulated, and sound reasoning supporting the conclusion, not the mere fact that the claims file was reviewed. Nieves-Rodriguez v, 22 Vet. App. at 303-04. Although the Veteran did attend VA examinations in July 2008 and September 2011, those examiners did not diagnose PTSD. In September 2011, the examiner specifically conceded that the Veteran has experienced formidable stressors, including the fear of hostile military activity. The examiner's point of disagreement stemmed from the Veteran's lack of significant social or occupational problems since those in-service stressors and the lack of treatment for PTSD. However, these opinions are no longer based on accurate evidence as the Veteran currently seeks treatment. The opinions also disregard the Veteran's lay statements and testimony describing his recurrent nightmares, flashbacks, avoidance, hypervigilance, exaggerated startle response, and sleep disturbance. The Veteran is competent to describe these symptoms, and credible in the consistency with which he has described them. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Accordingly, these examinations are not accorded significant probative value and are outweighed by the staff psychiatrist's findings. As there is a diagnosis of PTSD related to the Veteran's verified in-service stressor, the evidence supports the grant of service connection for PTSD. 38 C.F.R. § 3.304(f). Accordingly, the preponderance of the evidence supports service connection for PTSD is warranted. Hypertension The RO denied service connection for hypertension in an August 2008 rating decision. The RO acknowledged the current diagnosis of hypertension, but cited the lack of in-service diagnosis or diagnosis within one year of separation for hypertension. The Veteran was notified of this decision and his appellate rights, but did not appeal that decision. The Veteran did not submit new and material evidence within one year of the August 2008 rating decision. Therefore, that decision is final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. As noted above, service personnel records were received by VA in 2009. However, they include no medical information, and are not relevant to the Veteran's claim of entitlement to service connection for hypertension. Therefore, 38 C.F.R. § 3.156(c) does not apply, and the August 2008 rating decision is final with respect to the issue of entitlement to service connection for hypertension. As such, new and material evidence will still be necessary to reopen the claim. 38 C.F.R. § 3.156(a). In August 2011, the Veteran filed to reopen the claim of entitlement to service connection for hypertension. The RO declined to reopen this claim in the January 2012 rating decision on appeal. Nevertheless, the Board has a jurisdictional responsibility to consider whether it is proper for this claim to be reopened. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). To reopen a previously denied claim, there must be new and material evidence. New and material evidence is evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010) (stating that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim is a component of the question of what is new and material evidence, rather than a separate determination). Additionally, the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade, 24 Vet. App. at 117. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. At the time of the August 2008 rating decision, the evidence of record included the Veteran's service treatment records, his DD 214, and his lay statements. The service treatment records included the Veteran's blood pressure readings of 120/86 at his November 1966 pre-induction physical, 134/80 at his October 1968 entrance examination, and 122/70 at his May 1970 separation examination; as well as his report of medical history prior to dental treatment in May 1970. The Veteran's May 1970 report of medical history denied any history of heart disease, blood disease, bleeding problems, and dizziness. However, the Veteran had reported his private treatment for hypertension with prescription medication at his July 2008 PTSD examination. The evidence received since the August 2008 rating decision includes the Veteran's August 2011 claim, relating his hypertension to his herbicide exposure in Vietnam. He also testified at the September 2015 Board hearing, that his private doctor had related his hypertension to his PTSD. In September 2013, the Veteran further filed a March 2013 DBQ from that private doctor, Dr. MAW. As the Veteran's August 2011 claim suggests a nexus to service and his September 2015 testimony suggests that his hypertension may be related to PTSD, and there was previously no evidence of a nexus of record; the Board concludes that new and material evidence has been presented to reopen the previously denied claim of entitlement to service connection for hypertension. Ischemic Heart Disease The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105(d)(5). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(a). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204(a). Withdrawal may also be made on the record at a hearing. 38 CFR 20.204(b)(1). In the present case, the appellant and his authorized representative withdrew the issue of entitlement to service connection for ischemic heart disease on the record at his September 2015 hearing. Therefore, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this issue, and it is dismissed. ORDER The claim of entitlement to service connection for PTSD is reconsidered. Service connection for PTSD is granted. New and material evidence having been submitted, the claim of entitlement to service connection for hypertension is reopened; to this extent only, the claim is granted. The claim of entitlement to service connection for ischemic heart disease is dismissed. REMAND Initially, the Board notes that in his August 2007 claim of entitlement to service connection for hypertension, the Veteran reported diagnosis in October 1997 by Dr. MAW. As stated above, in September 2013, he filed a March 2013 hypertension DBQ signed by Dr. MAW. Therefore, it would appear that the Veteran still seeks private treatment for his hypertension. Remand is required to obtain those private treatment records. Similarly, the RO's June 2014 SOC indicated review of VA treatment records more recent than those available in Virtual VA. Therefore, remand is also required to obtain any outstanding VA treatment records. Additionally, the Veteran testified that Dr. MAW indicated that his hypertension may be related to his PTSD. The Veteran's September 2011 VCAA notice did not include notice as to the evidentiary requirements of a claim for secondary service connection. Remand is further required for corrective VCAA notice, including that information. The Veteran finally alleged in his August 2011 claim that his hypertension is due to in-service Agent Orange exposure. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Although not a presumptive disability, the Board finds that a VA examination is warranted to determine if hypertension is related to Agent Orange. See 38 C.F.R. §§ 3.159, 3.303(d), 3.309(e) (2015); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007). That examiner should also provide an opinion with regard to the possibility of secondary service connection. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a notice letter in connection with his claim for service connection for hypertension. The letter should (1) inform him of the information and evidence that is necessary to substantiate the claims; (2) inform him about the information and evidence that VA will seek to provide; and, (3) inform him about the information and evidence he is expected to provide. Specifically, the letter should notify him of the evidence necessary to substantiate the claim on both a direct and secondary basis. The letter should also explain how disability ratings and effective dates are determined. 2. Contact the appropriate VA Medical Center to obtain and associate with the claims file all outstanding records of treatment. A specific request should be made to the Tuskegee and Montgomery VAMCs for any treatment records following December 2013. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 3. Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination any relevant medical records. A specific request should be made for records from Dr. MAW and any other doctor who provided treatment for hypertension. Subsequently, and after securing the proper authorizations where necessary, arrange to obtain all the records of treatment or examination from all the sources listed by the Veteran that are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 4. After obtaining any outstanding VA and private treatment records, afford the Veteran a VA examination to determine the etiology of hypertension. The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner should state whether it is at least as likely as not (50 percent or higher probability) that the Veteran's hypertension is due to his conceded Agent Orange exposure in service. The examiner should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. The examiner should also state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension is either caused or aggravated by his service connected PTSD. In this regard, the examiner should discuss the Veteran's testimony that his private doctor has indicated that his hypertension may be related to his PTSD. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs