Citation Nr: 1621082 Decision Date: 05/25/16 Archive Date: 06/02/16 DOCKET NO. 13-13 030 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a lumbar spine disorder. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for a lumbar spine disorder. 5. Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD). 6. Entitlement to service connection for residuals of prostate cancer, to include an enlarged prostate. 7. Entitlement to service connection for erectile dysfunction, to include as secondary to residuals of prostate cancer. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Shauna M. Watkins, Counsel INTRODUCTION The Veteran served on active duty from January 1981 to May 2001, to include service in Southwest Asia during the Persian Gulf War. The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied entitlement to service connection for hypertension and a lumbar spine, because new and material evidence had not been received to reopen the claims; and also denied entitlement to service connection for anxiety attacks, cancer or enlargement of the prostate; and erectile dysfunction. In February 2016, the Veteran was afforded a hearing before the undersigned at the RO. A hearing transcript has been associated with the claims file. Following the most recent readjudication of this appeal by the Agency of Original Jurisdiction (AOJ) in the April 2013 Statement of the Case (SOC), additional evidence was added to the record. However, the Veteran's representative waived the Veteran's right to have the AOJ initially consider this evidence in a statement dated in April 2016. 38 C.F.R. §§ 20.800, 20.1304 (2015); but see 38 U.S.C.A. § 7105(e) (West 2014). This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, in addition to the Veteran's Virtual VA paperless claims file. The issues of: (1) entitlement to service connection for residuals of prostate cancer, to include an enlarged prostate; and, (2) entitlement to service connection for erectile dysfunction, to include as secondary to the non-service-connected residuals of prostate cancer, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. By a September 2002 rating decision, the RO denied the Veteran's claims for service connection for hypertension and a lumbar spine disorder; he was advised of the RO's decision, and of his appellate rights. 2. The Veteran did not initiate an appeal of the RO's decision within one year; nor was any new evidence received within a year. 3. Evidence received since the RO's September 2002 decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claims for service connection for hypertension and a lumbar spine disorder, and raises a reasonable possibility of substantiating the claims. 4. The Veteran's current hypertension was incurred in service. 5. The Veteran has arthritis of his lumbar spine that began in service. 6. The Veteran has a current acquired psychiatric disorder, to include panic disorder and depressive disorder, that was incurred in service. CONCLUSIONS OF LAW 1. The RO's September 2002 rating decision denying service connection for hypertension and a lumbar spine disorder is final. 38 U.S.C.A. §§ 7105 (West 2014); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2015). 2. New and material evidence has been received to reopen the claims for service connection for hypertension and a lumbar spine disorder. 38 U.S.C.A. §§ 1110, 1131, 5108 (West 2014); 38 C.F.R. §§ 3.303, 3.156 (2015). 3. The criteria for entitlement to service connection for hypertension have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. 4. The criteria for entitlement to service connection for a lumbar spine disorder have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2015). 5. The criteria for entitlement to service connection for acquired psychiatric disorder, to include panic disorder and depressive disorder, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence Claims The RO, by a decision entered in September 2002, denied the Veteran's claims for service connection for hypertension and a lumbar spine disorder on grounds that the Veteran did not have current diagnoses. The RO notified the Veteran of its decision, and of his appellate rights, but he did not submit a notice of disagreement; nor was any new evidence received within a year of notice of the decision. 38 C.F.R. § 3.156(b). As a result, the RO's decision became final. 38 U.S.C.A. §§ 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Accordingly, the claims may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. "New and material evidence" can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeal for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a "reasonable possibility of substantiating the claim" should be considered a component what constitutes new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has also held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the VA Secretary's duty to assist by providing a medical opinion. Id. Here, the pertinent evidence received since the RO's September 2002 rating decision includes VA treatment records, private treatment records, post-service Army Community Hospital treatment records, the Board hearing transcript, lay statements, private medical opinions, and the report of a VA examination. This evidence was not before adjudicators when the Veteran's claims were last denied in September 2002, and it is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to an unestablished fact necessary to substantiate the claims for service connection for hypertension and a lumbar spine disorder, and raises a reasonable possibility of substantiating the claims. Specifically, at the February 2013 VA examination, the Veteran was diagnosed with hypertension. In an August 2011 Army Community Hospital treatment record, the Veteran was diagnosed with degenerative joint disease and stenosis of the lumbar spine. A March 2016 private medical opinion also diagnosed the Veteran with lumbago. The Veteran's claims were previously denied because the Veteran did not have current diagnoses. Accordingly, the new evidence relates to an unestablished fact necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims. The claims are thus reopened. II. Service Connection Claims A. General Regulations and Statutes Service connection is warranted where the evidence establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish service connection, the evidence must show (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed Cir. 2009). Service connection may be granted for any disease diagnosed after military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including psychoses, arthritis (i.e., degenerative joint disease), and cardiovascular-renal disease, to include hypertension, will be presumed if they manifest to a compensable degree within one year following the active military service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2014); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see 38 C.F.R. § 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. B. Hypertension At the February 2013 VA examination, the Veteran was diagnosed with hypertension. A current disability is thus shown. The Veteran submitted a copy of his diary, which documents higher blood pressure readings from March 1994 to October 2009. This diary documents high blood pressure readings during the active military service. The Veteran's service treatment records (STRs) document "high normal B/P [blood pressure] readings" in June 1999 following a five-day blood pressure check. At his Board hearing, the Veteran and his spouse testified that the Veteran was told to change his diet and check his blood pressure when he was in the service. The Veteran's spouse also testified that the Veteran had been experiencing blood pressure problems since 1980 or 1990. Based on the aforementioned evidence, the Board finds that the second element of service connection has been met. The claims file currently contains positive and negative medical nexus opinions. As for the positive medical nexus evidence, the Veteran was afforded a VA QTC examination in August 2002, alittle over a year after his military discharge in May 2001. At the examination, the examiner determined that the Veteran did not have hypertension based on his blood pressure readings. However, the examiner found that the Veteran had experienced borderline blood pressure for several years but had never been treated. In September 2011, the Veteran's private treating physician, Dr. M.G., opined that it was more likely than not that the Veteran's hypertension existed while he was on active duty and went untreated. Dr. M.G. based this opinion on a review of the Veteran's medical records and a physical examination of the Veteran. As for the negative medical nexus evidence, the Veteran was afforded a VA examination in February 2013. Following a physical examination of the Veteran and a review of the claims file, the VA examiner determined that the Veteran's current hypertension was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that blood pressure is dynamic and fluctuations or changes in blood pressure can be related to stress or pain. On review of the Veteran's STRs, the examiner found no evidence that the Veteran was diagnosed or treated for hypertension while on active duty. The Board finds the positive evidence outweighs the positive on the issue of direct service connection. It is to be noted that the Board is not free to substitute its own judgment for as such a medical expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). However, the Board is required to assess the credibility and weight to be given to the evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). As the VA examiner did not consider the Veteran's diary of blood pressure readings, the lay statements from the Veteran and his spouse, or the June 1999 STR in forming the medical opinion, the Board finds the probative value of the private medical opinion is greater than the VA examiner's findings. The private medical opinion was also based upon a physical examination of the Veteran and a review of the claims file. Additionally, the private physician's report of the Veteran's medical history and clinical findings are consistent with the entire body of medical evidence of record - particularly, the STRs and diary, which document high blood pressure readings. There is no basis on which to find that the private medical opinion is incomplete or insufficient in any way. In light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection for hypertension have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102. C. Lumbar Spine Disorder The first element of service connection is established by an August 2011 Army Community Hospital treatment record. It shows that the Veteran was diagnosed with degenerative joint disease and stenosis of the lumbar spine. A March 2016 private medical opinion also diagnosed lumbago. Arthritis of the lumbar spine was not explicitly diagnosed during service, or within the applicable presumptive period. See 38 C.F.R. § 3.307(a)(3). Nevertheless, the record contains credible evidence of continuity of symptomatology related to arthritis of the lumbar spine during and since the Veteran's discharge from service. Specifically, at his February 2016 hearing, the Veteran and his spouse testified that the Veteran had experienced back problems that began in service. The Veteran testified that heavy lifting in service caused lumbar spine problems. The STRs contain numerous complaints of low back pain. See, e.g., October 1983, April 1988, April 1991, November 1991, March 1992, November 1997, June 1998, August 1998, November 1998, and October 2000. The STRs also contain a March 1994 motor vehicle accident (MVA), where the Veteran reports back pain. The last pertinent in-service complaint of low back pain was in October 2000, in which the Veteran was diagnosed with chronic low back pain. The first complaints of low back pain after service were documented at a July 2002 Army Community Hospital treatment visit. At an August 2008 VA QTC examination, the examiner diagnosed chronic lumbar sacral strain syndrome with tenderness and decreased range of motion. A July 2011 private magnetic resonance imaging (MRI) found degenerative changes of the Veteran's lumbar spine. In August 2011, the Veteran was diagnosed with degenerative joint disease and stenosis of the lumbar spine by the Army Community Hospital. This evidence establishes that the Veteran's lumbar spine disorder has been ongoing and continuous during and since his active military service. In light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection for arthritis of the lumbar spine, pursuant to the continuity of symptomatology provisions of 38 C.F.R. § 3.303(b), have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102. D. Acquired Psychiatric Disorder The Veteran is already service-connected for PTSD. In an August 2011 VA treatment record, the Veteran was diagnosed with depressive disorder. At the April 2010 VA psychiatric examination, the Veteran was diagnosed with panic disorder without agoraphobia. This evidence establishes a current psychiatric disability other than PTSD. At his February 2016 Board hearing, the Veteran and his spouse testified that the Veteran's current acquired psychiatric disorder was due to his service in the Persian Gulf. The Veteran's spouse testified that the Veteran became depressed right after he got back from Desert Storm. He testified that he was first treated for anxiety in service in 1982. His personnel records document that he served in Southwest Asia during the Persian Gulf War. In a January 2012 statement, the Veteran reported experiencing panic attacks during his active military service. The Veteran's STRs document treatment on three occasions in December 1982 for anxiety. From October 1986 to November 1986, the Veteran was treated for rapid breathing, nervousness, and tightness in his chest. In a January 2012 statement, the Veteran attributed the 1986 STRs to treatment for panic/anxiety attacks during service. The Board finds that the second element of service connection has been met. Finally, the evidence establishes a link between the current disability and service. At the April 2010 VA psychiatric examination, the VA examiner, following a physical examination of the Veteran and a review of the claims file, determined that the Veteran's current panic symptoms most likely represented a progression of anxiety (unexplained chest pains) and treatment that he received in service. In forming the medical opinion, the VA examiner considered the Veteran's lay statements of panic symptoms since 1982 and found that the Veteran's symptom-onset timeline coincided with his STRs. The Veteran was afforded another VA psychiatric examination in January 2016, but that examination focused only on the Veteran's already service-connected PTSD. There are no contrary medical opinions of record. In light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection for an acquired psychiatric disorder, to include panic disorder and depressive disorder, have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102. ORDER As new and material evidence has been received, the previously denied claim of entitlement to service connection for hypertension is reopened. As new and material evidence has been received, the previously denied claim of entitlement to service connection for a lumbar spine disorder is reopened. Service connection for hypertension is granted. Service connection for a lumbar spine disorder is granted. Service connection for an acquired psychiatric disorder, to include panic disorder and depressive disorder, is granted. REMAND VA examinations and medical opinions were obtained in April 2010 and February 2013, regarding the prostate cancer claim. The medical opinions were against a nexus between the current lumbar spine disorder and his active military service. However, the opinions did not reflect consideration of the October 2000 STR that documents an enlarged prostate, and instead rely on the absence of a prostate cancer diagnosis during service or an opinion as to whether the finding is related to the current disability. The Veteran's claim encompasses an enlarged prostate. A medical examination report must contain not only clear conclusions, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Once VA has provided a VA examination, it is required to provide an adequate one, or explain why one cannot be provided). Barr v. Nicholson, 21 Vet. App. 303, 311 (2007), overruled on other grounds by Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Therefore, an addendum VA medical opinion is required before the prostate cancer claim can be decided on the merits. The Veteran asserts that his erectile dysfunction is secondary to the currently non-service-connected prostate cancer residuals. See Board hearing transcript; 38 C.F.R. § 3.310. Based on the fact that the prostate cancer claim is being remanded, the claim for erectile dysfunction cannot at this time be appropriately evaluated. Thus, this matter must be remanded as it is inextricably intertwined with the claim for service connection for prostate cancer. Hunt v. Nicholson, 20 Vet. App. 519, 525 (2005); Harris v. Derwinski, 1 Vet. App. 180, 183-4 (1991), overruled on other grounds by Tyrues v. Shinseki, 23 Vet. App. 166 (2009). Accordingly, the case is REMANDED for the following actions: 1. Refer the claims file and a copy of this REMAND to the February 2013 VA examiner (or another appropriate examiner if unavailable) for an addendum to the February 2013 VA medical opinion regarding the Veteran's prostate claim. If the examiner determines that it is necessary, schedule the Veteran for a VA examination to determine the etiology of his currently diagnosed prostate cancer (status post robotic prostatectomy). The VA examiner should review the Veteran's claims file, to include his STRs, as well as a complete copy of this Remand. The VA examiner should note that this action has been accomplished in the VA examination report. The examiner should specifically address whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's current prostate cancer (status post robotic prostatectomy) or any other prostate disease or disability shown at any time since 2010, began in active service or was otherwise the result of a disease or injury during active duty. The examiner should discuss the October 2000 STR documenting an enlarged prostate. The examiner must also consider the testimony by the Veteran and his spouse in forming the medical opinion. The examiner should provide reasons for the opinion. If the examiner is unable to offer an opinion without resorting to speculation, the examiner must state whether the inability is due to the limits of the examiner's medical knowledge, the limits of medical knowledge in general or there is additional evidence that would permit the opinion to be provided if obtained. 2. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then return the case to the Board, if otherwise in order. 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs