Citation Nr: 1804843 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-07 816 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for hypertension. 2. Entitlement to service connection for diabetes mellitus, type II. 3. Entitlement to an effective date earlier than March 29, 2012, for the award of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs ATTORNEY FOR THE BOARD K. Marenna, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to June 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal from February 2013 and November 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The reopened issue of entitlement to service connection for hypertension is REMANDED to the Agency of Original Jurisdiction (AOJ) and will be addressed in that portion of the decision. FINDINGS OF FACT 1. The Veteran's claim for service connection for hypertension was previously denied by a June 1998 rating decision; the Veteran did not appeal the decision or submit documentation constituting new and material evidence within the one-year appeal period. 2. Additional evidence received since the June 1998 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 claim for service connection for hypertension, and raises a reasonable possibility of substantiating the claim. 3. The Veteran has not been diagnosed with diabetes mellitus, type II, at any point during the appeal period. 4. The Veteran received the most recent final denial of the issue of entitlement to service connection for PTSD in February 2009 and has not alleged clear and unmistakable error in any prior final decisions. 5. There was no formal or informal claim to reopen a claim for entitlement to service connection for PTSD between February 2009 and March 29, 2012. CONCLUSIONS OF LAW 1. The June 1998 rating decision denying service connection for hypertension is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the Veteran's claim for service connection for hypertension. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303, 3.307, 3.309 (2017). 4. The criteria for an effective date earlier than March 29, 2012, for the award of service connection for PTSD have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"). New and Material Evidence- Hypertension A claim for service connection for hypertension was originally denied in a June 1998 rating decision on the basis that there was no record of high blood pressure or a diagnosis of hypertension in service. The RO notified the Veteran of its decision, and of his appellate rights. The Veteran did not appeal the decision, nor did he submit any new and material evidence within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Accordingly, the claim 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. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. In determining whether evidence is new and material, the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118 (2010). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512 (1992). Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. Here, the evidence received since the June 1998 rating decision includes a newspaper article received in February 2013. In the article, a person identified as a Veterans Affairs Officer is quoted as saying that "medical studies have proven that Agent Orange causes numerous health problems including diabetes mellitus, high blood pressure and heart disease." The article is new, as it was not previously of record at the time of the last final rating decision. The Board finds the article is also material. As noted above, the credibility of the new evidence must be presumed. The article indicates there is medical evidence linking exposure to Agent Orange and high blood pressure. The Veteran's service personnel records reflect that he served in Vietnam during the Vietnam War Era from June 1967 to June 1968 and is presumed to have been exposed to herbicide agents, to include Agent Orange. 38 U.S.C. § 1116(f) and 38 C.F.R. § 3.307(a)(6). The Veteran's claim for service connection for hypertension was previously denied in part because there was no evidence of a nexus between the Veteran's hypertension and active service. The newspaper article relates to an unestablished fact necessary to substantiate the claim - that there is a link between exposure to Agent Orange and hypertension. This evidence was not before adjudicators when the Veteran's claim was last denied in June 1998 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 claim for service connection for hypertension, and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. Service Connection Service connection is warranted where the evidence of record 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. §1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (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. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases, including Type II diabetes mellitus, shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicide agents (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C. § 1116(f) and 38 C.F.R. § 3.307(a)(6). The Veteran has asserted that he has diabetes mellitus as a result of exposure to Agent Orange during service in Vietnam. In the present case, the Board finds that the Veteran has not been diagnosed with diabetes mellitus, type II. The medical evidence of record reflects that the Veteran has been diagnosed with pre-diabetes, but does not show, and he has not asserted, that he has been diagnosed with diabetes mellitus. In a January 2013 statement in support of his claim, the Veteran stated he is pre-diabetic, which is now "almost diabetes." A December 2015 VA treatment record notes the Veteran had impaired fasting glucose, "prediabetic state." VA treatment records, including one from October 2016, indicate the Veteran had been prescribed glucose test strips for testing three days a week for blood glucose. A VA problem list, printed in August 2016 reflects a diagnosis of hyperglycemia. The "current disability" requirement for service connection will be met when there is a disability at the time of filing or during the pendency of a claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Although the Veteran served within the Republic of Vietnam and is presumed to have been exposed to an herbicide agent, the Board finds that the competent, probative evidence of record does not contain a diagnosis of type II diabetes mellitus at any point during the appeal period. The Veteran himself has stated that he has not been diagnosed with diabetes mellitus, type II. In the absence of a current disability, the preponderance of the evidence is against the Veteran's claim for service connection for diabetes mellitus, type II. Accordingly, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Earlier Effective Date In an April 2014 rating decision, the Veteran was granted service connection for PTSD, effective March 29, 2012. The RO noted that the Veteran was previously denied service connection for PTSD in a February 2013 rating decision. The Veteran's request to reopen the claim was received on July 19, 2013, prior to the previous denial becoming final. As new and material evidence was received prior to the previous denial in February 2013 becoming final, the RO granted an effective date of March 29, 2012, the date of the Veteran's previous claim to reopen his claim for PTSD. The Veteran has asserted that he is entitled to an effective date earlier than March 29, 2012, for the award of service connection for PTSD. The Veteran's claim for service connection for PTSD was originally denied in a June 1998 rating decision. The RO notified the Veteran of its decision, and of his appellate rights. After receiving new evidence from the Veteran, the RO confirmed the denial of the claim for service connection for PTSD in a July 1998 rating decision. The Veteran filed a notice of disagreement with the decision in July 1998. In September 1998, the RO issued a Statement of the Case denying the claim for service connection for PTSD. The Veteran did not file a timely substantive appeal, nor did he submit any new and material evidence within one year following the decision. Therefore, the July 1998 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104. The Veteran submitted a PTSD stressor statement in October 2008, which was accepted as a petition to reopen his claim for service connection for PTSD. In a February 2009 rating decision, the RO denied the Veteran's petition to reopen the claim because the evidence submitted by the Veteran was insufficient to verify his stressors. The RO notified the Veteran of its decision, and of his appellate rights. The Veteran did not appeal the decision, nor did he submit any new and material evidence within one year following the decision. Therefore, the February 2009 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104. In his April 2014 claim for an earlier effective date, the Veteran stated that he had initially filed for PTSD in 1998. In a March 2015 notice of disagreement, the Veteran noted that he was first diagnosed with PTSD in 1998. Generally, the effective date of an award of a claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). As the February 2009 rating decision is final, the Board has considered whether any communication from the Veteran dated between February 2009 and the petition to reopen his claim on March 29, 2012, may be construed as a claim or informal claim to reopen his claim for service connection for PTSD. Regulations defining a "claim" were revised, effective March 24, 2015. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The revision eliminated informal claims and required claims on specific forms. In this case, however, the applicable regulations are those prior to the revision, as this claim was pending prior to March 24, 2015. As such, the Board will apply the regulations effective prior to March 24, 2015 regarding defining a claim. A claim is a formal or informal communication, in writing, requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such an informal claim must identify the benefit sought. In a letter received in August 2011, the Veteran stated that he was "writing to check on the status of my claims that I submitt[ed] in I don't remember what year." He stated that he had gotten a few letters from VA that they had received his application. The Board finds that this statement cannot be construed as an informal claim to reopen his claim for PTSD. The Veteran did not specifically express an intent to apply for benefits, but instead requested a status update. The Veteran received notice of the rating decision denying the petition to reopen his claim for PTSD in February 2009 to his address of record at that time. The Veteran sent communications to the VA regarding his pension between February 2009 and August 2011, but did not submit any statements regarding his claims for service connection. In the claim received in March 29, 2012, the Veteran did not reference the August 2011 letter or indicate he had filed a petition to reopen the claim prior to March 2012. Therefore, the Board finds the August 2011 statement cannot be construed an informal claim to reopen his claim for service connection for PTSD as it did not indicate an intent to apply for benefits for PTSD. The Veteran has asserted that he is entitled to an earlier effective date of 1998 for the award of service connection for PTSD. In a September 2016 substantive appeal, the Veteran stated that he did not know why he was denied PTSD in 1998. He stated he is appealing because "you claim there was no stressful event. I was nineteen years old and getting shot at by snipers. . . ." The Board has considered whether the Veteran's statements regarding the denial of service connection for PTSD in 1998 can be construed as a claim for clear and unmistakable error (CUE) with the July 1998 rating decision initially denying service connection for PTSD. CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, CUE exists when either the correct facts, as they were known at the time, were not before the decision makers, or the statutory and regulatory provisions extant at the time were incorrectly applied. See 38 C.F.R. § 20.1403(a); Sorakubo v. Principi, 16 Vet. App. 120 (2002). Generally, CUE must be pled with some degree of specificity as to what the alleged error is. A simple disagreement with how the RO evaluated the facts is not sufficient to raise a valid claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). The Veteran's statements indicate he disagrees with the denial of service connection for PTSD in 1998, but he does not give any specific reason for his disagreement or assert there was an error in the decision. He does not argue that the correct facts were not before the Board or that the RO incorrectly applied statutory and regulatory provisions. He also does not specifically reference the July 1998 rating decision by date. Therefore, even when sympathetically construing the Veteran's statements, the Board finds that the issue of CUE in the July 1998 rating decision has not been raised by the Veteran. The Board finds that the Veteran is not entitled to an effective date for the award of service connection for PTSD prior to March 29, 2012. As noted above, the effective date of an award of a claim is generally the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. As discussed above, the February 2009 rating decision denying the Veteran's petition to reopen his claim for service connection for PTSD is final. Even if entitlement to PTSD arose prior to March 29, 2012, the date of the claim would be the later of the two dates, and hence would be the correct effective date. The Board finds the Veteran did not file a formal or informal claim to reopen his claim for service connection for PTSD between the last final rating decision denying the claim in February 2009, and the date of his claim on March 29, 2012. The Board finds the Veteran has not asserted that there was CUE in a prior rating decision. Consequently, the claim for an effective date prior to March 29, 2012, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER New and material evidence having been received, the claim for service connection for hypertension is reopened; to this extent only the appeal is granted. Service connection for diabetes mellitus, type II, is denied. Entitlement to an effective date earlier than March 29, 2012, for the award of service connection for PTSD, is denied. REMAND With respect to the need for a medical opinion on the issue of entitlement to service connection for hypertension, the Board notes that a VA opinion must be provided where there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain disease manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran has been diagnosed with hypertension. His service personnel records reflect that he served in Vietnam from June 1967 to June 1968, during the Vietnam War era. The Veteran is thus presumed to have been exposed to herbicide agents, to include Agent Orange. 38 U.S.C. § 1116(f) and 38 C.F.R. § 3.307(a)(6). In light of the newspaper article indicating a link between hypertension and exposure to Agent Orange in Vietnam, the evidence indicates the Veteran's hypertension may be related to service. Under these circumstances, the Board finds that the requirements for obtaining a VA opinion have been satisfied. Therefore, remand is required to obtain an opinion. Further, a review of the record shows that the AOJ has not yet considered this claim on the merits. To avoid any prejudice to the Veteran, a remand for AOJ consideration of the claim on the merits, in the first instance, is required. This appeal is REMANDED for the following actions: 1. Forward the electronic claims file to a VA clinician of appropriate expertise. The examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that hypertension was incurred in, or is otherwise related to active duty service, to include as due to exposure to herbicide agents, to include Agent Orange. A complete rationale for the medical opinion is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion. If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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 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. §§ 5109B, 7112 (2012). ____________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs