Citation Nr: 1805562 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-19 288 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), and if so, whether service connection is warranted. 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel INTRODUCTION The Veteran had active duty service under honorable conditions with the United States Marine Corps from November 1969 to May 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania that, in relevant part, denied entitlement to service connection for hypertension, and confirmed and continued a previous denial of entitlement to service connection for PTSD. The Veteran filed a Notice of Disagreement in August 2012. A Statement of the Case was issued in December 2013. The Veteran filed his Substantive Appeal in January 2014. The Veteran requested a Travel Board hearing before a Veterans Law Judge in his Substantive Appeal. A hearing was scheduled in July 2017, but the Veteran failed to appear. Neither the Veteran nor his representative has offered good cause for the Veteran's absence. As such, the Board finds that the Veteran's waived his request for a hearing, and the case is properly before the Board. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board is broadening the Veteran's claim of entitlement to service connection for PTSD to a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, as reflected in the issues section above. See id. at 5 (the claim "cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed..."). The issues of entitlement to service connection for hypertension and an acquired psychiatric disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An October 1994 rating decision denied entitlement to service connection for PTSD. The Veteran did not appeal the RO determination or present new evidence within one year of the rating decision. As such, this decision is final. 2. Evidence has been received since the October 1994 rating decision that relates to an unestablished fact necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims of service connection for an acquired psychiatric disorder, to include PTSD. CONCLUSIONS OF LAW 1. The October 1994 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). 2. New and material evidence has been received since the October 1994 denial of service connection for an acquired psychiatric disorder, to include PTSD, and as such, the claim is reopened. 38 U.S.C.A. §§ 1131, 5103, 5108 (West 2014); 38 C.F.R. §§ 3.156, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA Notice As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. New and Material Evidence Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2014). "New" evidence is defined as existing evidence not previously submitted to agency decision makers. "Material" evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO initially denied the Veteran's claim of entitlement to service connection for PTSD in October 1994 due to a lack of a nexus between service and the disability. In that decision, the RO stated that the Veteran had been diagnosed with PTSD, but his claimed stressor, which purported occurred in the Republic of Vietnam, could not be sustained by his records, which failed to show service in-country. Evidence received since the October 1994 rating decision includes two stressors not previously reported, which can preliminarily be supported by the Veteran's personnel records. First, the Veteran reported that he awoke during a surgical procedure in the Philippines, which caused him great distress. Second, the Veteran reported that he was attacked by monkeys in the Philippines. The Veteran's personnel record reflects service in the Philippines during the Vietnam War, as well as a surgical procedure for hemorrhoids. The bar to reopening a claim for new and material evidence is low, and the Veteran's reported stressors meet that threshold. Therefore, such evidence is new and material, and the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is reopened. ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is reopened. REMAND Remand is necessary to further adjudicate the issues on appeal. The Veteran was not provided a VA examination to assess the etiology of his hypertension. The Veteran's separation examination in April 1971 noted a blood pressure reading of 188/90, higher than the normal blood pressure range. Post-service medical records are limited for decades after service, but indicate a diagnosis of hypertension in 1995. As the medical evidence of record at least indicates that the Veteran may have suffered from high blood pressure in service, an examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 82-3 (2006). Furthermore, the Veteran's VA examination in November 2010 narrowly focused on his claim of entitlement to service connection for PTSD, but did not address the etiology of other psychiatric diagnoses. As such, the examination is inadequate for the purposes of adjudication, and a new examination is necessary on remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). (CONTINUED ON NEXT PAGE) Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and his representative in order to identify any outstanding private treatment records regarding his acquired psychiatric disorder, to include PTSD, and hypertension. If private providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the private treatment records and associate them with the claims file. If such records cannot be obtained, inform the Veteran and his representative, and afford an opportunity for him to provide these outstanding records. 2. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. Make as many requests as are necessary to obtain relevant records, and only end efforts to do so if the records sought do not exist or further efforts to obtain those records would be futile. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 3. Once the aforementioned development is complete, schedule the Veteran for a VA examination to determine the etiology of his hypertension. The examiner must review the entire claims file, including a copy of this remand. The examiner should consider any and all lay statements regarding observable symptomatology or past diagnoses. The examiner should opine as to the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension began during active service, is related to an incident of service, or began within one year after discharge from active service? The examiner must provide all findings, along with a complete rationale for his or her opinion in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. The examiner should also identify what additional information or evidence (if any) may allow for a more definitive opinion. 4. Once the aforementioned evidentiary development is complete, schedule the Veteran for a VA examination to assess the etiology of his acquired psychiatric disorder, to include PTSD. The examiner must review the entire claims file, including a copy of this remand. The examiner should consider lay statements regarding observable symptomatology. The examiner should opine as to the following: (a) Identify any and all acquired psychiatric disorders with which the Veteran is presently diagnosed; (b) For each identified psychiatric disorder, determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disorder began during active service, is related to an incident of service, or began within one year after discharge from active service. The examiner must provide all findings, along with a complete rationale for his or her opinion in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. The examiner should also identify what additional information or evidence (if any) may allow for a more definitive opinion. 5. Following completion of the foregoing, the AOJ should review the record and readjudicate the claims on appeal. If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. 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). ______________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs