Citation Nr: 1803853 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-09 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been submitted to reopen the previously denied claim for service connection for depression. 2. Whether new and material evidence has been submitted to reopen the previously denied claim for hypertension. 3. Whether new and material evidence has been submitted to reopen the previously denied claim for service connection for bilateral pes planus. 4. Entitlement to service connection for a depression. 5. Entitlement to service connection for hypertension. 6. Entitlement to service connection for bilateral pes planus. 7. Entitlement to service connection for a headache disorder. 8. Entitlement to service connection for bilateral hearing loss. 9. Entitlement to service connection for bilateral tinnitus. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L.J. Bakke, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to April 1968. This appeal is before the Board of Veterans Appeals (Board) from rating decisions before the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In March 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been made and associated with the claims file. (Please note that the transcript is dated March 2013, but verified as having taken place in March 2017 by the VLJ. See March 2017 Board Transcripts, p. 2, (marked rec'd 3/15/2017. Although the RO determined that new and material evidence had been submitted to reopen the Veteran's claims for service connection for bilateral pes planus and depression, the Board must determine on its own whether new and material evidence has been submitted to reopen these claims. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The issue of service connection for a depression, hypertension, bilateral pes planus, headache disorder, bilateral hearing loss, and bilateral tinnitus addressed in the REMAND portion of the decision below is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In September 2009, the RO declined to reopen the previously denied claims for service connection for depression, hypertension, and bilateral pes planus. The Veteran was notified of that decision, but did not appeal. New and material evidence was not received within one year of the rating decision. 2. The additional evidence received since the September 2009 RO decision denying service connection for depression, hypertension, and bilateral pes planus, is both new and material in that is not redundant or duplicative of that evidence already of record, and it raises a reasonable possibility of substantiating the claim for service connection for depression, hypertension, and bilateral pes planus. CONCLUSIONS OF LAW 1. The September 2009 rating decision that denied service connection for depression is final. 38 U.S.C. § 7105(b), (c) (2014); 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103 (2017). 2. New and material evidence having been received, the claim for service connection for depression is reopened. 38 U.S.C. §§ 5108, 7105 (2014); 38 C.F.R. § 3.156(a) (2017). 3. The September 2009 rating decision that denied service connection for hypertension is final. 38 U.S.C. § 7105(b), (c) (2014); 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103 (2017). 4. New and material evidence having been received, the claim for service connection for hypertension is reopened. 38 U.S.C. §§ 5108, 7105 (2014); 38 C.F.R. § 3.156(a) (2017). 5. The September 2009 rating decision that denied service connection for bilateral pes planus is final. 38 U.S.C. § 7105(b), (c) (2014); 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103 (2016). 6. New and material evidence having been received, the claim for service connection for bilateral pes planus is reopened. 38 U.S.C. §§ 5108, 7105 (2014); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In a September 2009 rating decision, the RO declined to reopen the previously denied claims for service connection for depression, hypertension, and bilateral pes planus. The Veteran did not appeal this decision. Accordingly, the September 2009 rating decision became final. Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. "New evidence" means existing evidence not previously submitted to VA. 38 C.F.R. § 3.156(a). "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. Id. 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, and it must raise a reasonable possibility of substantiating the claim. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and it views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Evidence "raises a reasonable possibility of substantiating the claim" if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. See Id., at 120-23. Additionally, where VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim pursuant to 38 C.F.R. § 3.156(c), as noted above, provided that such records include service records that are related to the claimed in-service event, injury, or disease. At the time of the September 2009 rating decision, the evidence relative to depression, hypertension, and bilateral pes planus was comprised of the Veteran's statements, service treatment records, VA treatment records and VA examinations conducted in June 2007. In his claim and statements in support of his claim denied in September 2009 rating decision, the Veteran averred that he continued to receive treatment for these conditions, including at VA facilities. See Veteran's Claim, rec'd 1/23/2009. In addition, he indicated he had received private treatment. See, Veteran's Statement in Support of Claim, rec'd 3/20/2009. VA treatment records show the Veteran reported that the physician was located in Bainbridge. See VA Treatment Records rec'd 5/14/2007 and 2/7/2009. Yet, while the Veteran provided a release of records for the physician, he did not provide an address or phone number by which the AOJ could contact the physician. See VA Form 21-4142 rec'd 3/20/2009. Service treatment records show that the Veteran was hospitalized for recurrent headaches, and that he was also treated for complaints of nervousness and anxiety including with Librium and Thorazine. Service treatment records reflect he was ultimately diagnosed with cephalalgia secondary to muscle tension and an emotionally unstable personality. His reports of medical history and examination at entrance to, and discharge from, active service, showed no complaints or findings of any depression or hypertension. Blood pressure readings were recorded at 130 over 70 in April 1966 as compared to 120 over 180 at discharge in April 1968. See, in general, Service Treatment Records, rec'd 8/7/1968. Concerning the claimed bilateral pes planus, however; the Board notes that there were no complaints or findings of any pes planus or other foot disorder at entrance to active service in April 1966. But at discharge from active service, the examiner noted second degree pes planus, asymptomatic and not considered disabling, in April 1968. VA treatment records from 2007-2009 reveal findings of recent depression associated with the loss of his wife the year prior. The Veteran stated he was hospitalized during active service for depression. Concerning the claimed hypertension, VA treatment records reflect a diagnosis of hypertension in February 2007 with a history, again as reported by the Veteran, of borderline elevation while on active duty and of treatment with medication for the past 10-15 years. Regarding the claimed pes planus, the Veteran reported the condition was diagnosed during active service, but he had no current foot problems. See VA Treatment Records rec'd 5/14/2007 (included with May 2014 Compensation and Pension Exam Inquiry) and 2/7/2009. VA examinations conducted in June 2007 reflect an AXIS I diagnosis of bereavement. The examiner observed that the Veteran's wife passed away in 2006. See June 2007 VA Examination for Mental Disorders, p. 7. Concerning the claimed hypertension, the June 2007 VA examination for Feet (including Hypertension) contains the Veteran's reported history of borderline blood pressure elevations while in the military, with onset of hypertension 10-15 years ago. The examiner diagnosed hypertension needing continuous medication to control, and noted that hypertensive heart disease was present. Concerning the claimed bilateral pes planus, the examination report shows the Veteran's report of onset of the bilateral foot condition during active service after marching exercises. Since then, he stated, his feet were stable, but now he experiences inability to stand for excessive amounts of time, to walk, jump or run. He reported no history of orthotic arch supports, but stated he wears good, comfortable sneakers. The examiner diagnosed bilateral pes planus. Evidence associated with the Veteran's claims since the September 2007 rating decision includes the Veteran's testimony before the a hearing officer at the AOJ in January 2014, his testimony before the undersigned VLJ in March 2017; additional statements from the Veteran, VA treatment records, and VA examinations conducted in February 2014. For reasons explained below, the Board finds that this this evidence is both new and material, and the reopening of the claims is warranted. The Veteran continues to aver that his claimed depression, hypertension and bilateral pes planus had their onset during active service. Specifically, he testified that he had symptoms of depression during active service and that it was part of the overall condition for which he was hospitalized during active service. In addition, he reported he was treated on another base for his anxiety, where he was prescribed medication for his nerves. His blood pressure was borderline during active service, a response which he argued was due to stress and headaches during active service. His bilateral foot condition, he testified, was not diagnosed until his discharge, but was present during active service. However, he also testified he received no inserts or other treatment for his bilateral flat feet during service. These conditions only existed in Okinawa, he explained. Once he returned from Okinawa, he got better. See January 2014 RO Transcripts, pp. 3, 5-6, 7-8; see also March 2017 Board Transcripts, pp. 8, 11, 13-14, 17, 20. The Board accepts the Veteran's sworn testimony of his experiences during active service concerning his claimed depression, hypertension and bilateral pes planus. This evidence is new in that it has not been present in the record before, it is neither repetitive nor cumulative of evidence previously of record. It is further material, in that this evidence, when viewed in conjunction with other evidence of record, presents a reasonable possibility of substantiating the Veteran's claims. Accordingly, the petition to reopen the claims for entitlement to service connection for depression, hypertension, and bilateral pes planus is reopened. ORDER New and material evidence having been received to reopen the service connection claim for depression, the claim to reopen is granted. New and material evidence having been received to reopen the service connection claim for hypertension, the claim to reopen is granted. . New and material evidence having been received to reopen the service connection claim for bilateral pes planus, the claim to reopen is granted. REMAND As explained above, the Board has reopened the previously denied claims for depression, hypertension, and bilateral pes planus. The Veteran also claims service connection for a headache disorder, bilateral hearing loss, and bilateral tinnitus. The medical evidence does show current diagnoses of depression, bilateral flat feet, hypertension, tension headaches, bilateral hearing loss, and tinnitus. The Veteran testified in March 2017 before the undersigned VLJ that his depression began during active service, when he was stationed in Okinawa. His blood pressure problems began at the same time, he testified, and was part of the same problem that resulted in his hospitalization and psychiatric treatment. His flat foot condition was discovered on discharge but not indicated or noted on his entrance to active service. His hearing disabilities were the result of consistent and sustained exposure to acoustic trauma as a Marine light weapons repairman. See, in general, March 2017 Board Transcripts. Service treatment records show that the Veteran was treated for complaints of nervousness and anxiety, including with Librium and Thorazine, and that he was hospitalized for recurrent headaches. In addition, his report of medical history and examination service shows no complaint, findings, abnormalities or other diagnoses of pes planus or any other foot disorder at entrance to active service in April 1966. Yet, at discharge from active service in April 1968, the examiner noted second degree pes planus, asymptomatic and not considered disabling. Blood pressure readings were recorded at 130 over 70 in April 1966 as compared to 120 over 180 at discharge in April 1968. See, in general, Service Treatment Records, rec'd 8/7/1968. Moreover the Veteran's discharge document reflects he worked as an infantry weapons repairman, and was last assigned to the Ordnance Maintenance Company, Marine Infantry Battalion 2dFSR, ForTRS, FMFLant, Camp Lejeune. This is consistent with the Veteran's assertions of exposure to acoustic trauma. The Board observes that the Veteran underwent VA examinations for his claimed depression, pes planus, headaches, hearing loss and tinnitus in May 2014, in which the VA examiner opined that the manifested depression, pes planus, and tension headaches could not be linked etiologically to his active service based, in part, on an absence of evidence of medical treatment for these conditions for a long period of time after discharge. Concerning the claimed hearing loss and tinnitus, the VA audiologist stated she could not provide an opinion without resorting to medical speculation given the discharge examination's measurement of hearing in terms of whispered voice. Notwithstanding, the Board has reopened the claims for service-connection for depression, hypertension, and pes planus. In addition, the Veteran testified in March 2017, that he had received private treatment for his conditions a private treating physician, and that these records were submitted to the Tallahassee, Florida VA RO. These records are not in the file before the Board, and the Board finds it must obtain them before adjudicating these claims. Accordingly, the case is REMANDED for the following action: 1. Conduct all development necessary to adjudicate the claims for service connection for depression, hypertension, pes planus, headaches, hearing loss and tinnitus, including to obtain private treatment records. In addition provide the Veteran and his representative with the opportunity to again submit private medical treatment records, or to identify the health care provider and to provide sufficient contact information to allow VA to obtain said records. In particular, ask the Veteran and his representative to provide clarification of the VA Form 21-4142 he submitted in 2009, in which he identified a physician located in Bainbridge. See VA Form 21-4142, rec'd 3/20/2009. Obtain all pertinent VA treatment records not already of record. Conduct all indicated follow-up. Document all negative responses and provide the Veteran and his representative notice of same. Offer the Veteran and his representative an appropriate period of time to submit any records that have not been obtained. 2. After completion of all development indicated in #1 schedule examinations with the appropriate examiners to determine the nature, extent and etiology of the claimed depression, hypertension, pes planus, headache disorder, bilateral hearing loss, and bilateral tinnitus. The entire claims folder, to include this remand, must be made available to the examiners for review, and the examination reports should reflect that such a review was accomplished. All studies deemed appropriate shall be performed, and all findings shall be set forth in detail. The examiner is asked to address the following: Is it at as likely as not (50 percent or greater probability) that any manifested neuropsychiatric disorder to include depression, hypertension, and headache disorder had their onset during active service; is in any way related to the anxiety, nervousness and tension headaches and for which he was treated and hospitalized during active service; or, in the alternative, is related to active service or any incident therein? Is it at as likely as not (50 percent or greater probability) that any manifested pes planus is in any way related to active service and any incident therein? Is it at as likely as not (50 percent or greater probability) that any manifested bilateral hearing loss and tinnitus is in any way related to active service and any incident therein? A complete rationale should be provided for any and all opinions given. 3. After all of the above development is completed, readjudicate the claims on appeal. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs