Citation Nr: 1805949 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-10 711A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether a timely notice of disagreement (NOD) was filed with respect to a May 2009 rating decision which denied service connection for human immunodeficiency virus (HIV). 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for HIV. 3. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder not otherwise specified (NOS), with features of PTSD. 4. Entitlement to service connection for diabetes mellitus. 5. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney at Law ATTORNEY FOR THE BOARD Bonnie Yoon, Counsel INTRODUCTION The Veteran served on active duty from August 1979 to March 1980 and from January 1981 to January 1984. These matters are before the Board of Veterans' Appeals (Board) on appeal from October 2012 and July 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The issues of service connection for an acquired psychiatric disorder and whether there is new and material evidence to reopen a claim for service connection for HIV were previously before the Board in December 2014, when they were remanded for further development. The issues of whether new and material evidence has been received to reopen a claim for entitlement to service connection for HIV and entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder NOS, with features of PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. No communication from the Veteran or his representative expressing disagreement with the May 2009 rating decision was received during the one-year period following the date of the June 2009 notification letter, and the earliest correspondence indicating disagreement with the denial of service connection for HIV was received by VA in October 2010. 2. Diabetes mellitus did not have its onset in active service or for many years thereafter, and it is not related to active service. 3. Hypertension did not have its onset in active service or for many years thereafter, and it is not related to active service. CONCLUSIONS OF LAW 1. The Veteran did not file a timely NOD with the May 2009 rating decision as to the denial of service connection for HIV, and the May 2009 rating decision is final as to such matter. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 19.34, 20.200, 20.201, 20.300, 20.302 (2017). 2. The criteria for service connection for diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Veteran has not raised any issues with the duty to notify. 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"). Regarding the issue of whether the Veteran filed a timely NOD with the May 2009 rating decision's denial of service connection for HIV, such issue is a matter of legal interpretation. The United States Court of Appeals for Veterans Claims (Court) has held that the statutory and regulatory provisions pertaining to VA's duties to notify and assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Because there is no reasonable possibility that further notice or assistance will aid in substantiating that the Veteran filed a timely NOD, any deficiencies of notice or assistance are rendered moot. See 38 U.S.C. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001). Regarding the issues of service connection for hypertension and diabetes mellitus, VA has fulfilled its duty to assist the Veteran. The Veteran's service treatment records and all identified VA and private treatment records relevant to the appeal have been obtained. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board recognizes that the Veteran has not been afforded a VA examination in connection with his claims of service connection for hypertension and diabetes mellitus. However, inasmuch as there is no competent and credible evidence raising any possibility of an in-service injury or event, or a nexus between either disability and service, no examination is warranted for either disability. 38 U.S.C. § 5103A(a)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his claims. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim being decided. Timeliness of NOD Under 38 U.S.C. § 7105(a), an appeal to the Board must be initiated by an NOD and completed by a substantive appeal (VA Form 9 or equivalent) after an SOC is furnished to the claimant. See 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. A written communication from a claimant (or his representative) expressing dissatisfaction or disagreement with an adjudicative determination by the RO and a desire to contest the result will constitute an NOD. 38 U.S.C. § 7105; 38 C.F.R. § 20.201. While special wording is not required, the NOD must be in terms that can be reasonably construed as a disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201; Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002). A claimant (or his representative) must file an NOD with a determination of the RO within one year from the date that the RO mailed notice of the determination. 38 C.F.R. § 20.302(a). If an NOD is not filed within the one-year time period, the RO decision becomes final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.200, 20.201, 20.302. An untimely NOD deprives the Board of jurisdiction to consider the merits of an appeal. 38 U.S.C. § 7105(c). The Board may implicitly or explicitly waive the issue of the timeliness of a substantive appeal. A timely filed NOD, however, is a jurisdictional bar to appellate consideration, and this issue may not be waived. See Percy v. Shinseki, 23 Vet. App. 37, 41 (2009). The Board is bound by the law and is without authority to grant an appeal on an equitable basis. See 38 U.S.C. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). In October 2008, the Veteran filed an initial claim for service connection for HIV. The claim was denied in a May 2009 rating decision, and a June 2009 letter notified him of such decision and advised him of his appellate rights, including that there was a one-year time limit for filing an NOD. No communication from the Veteran or his representative which may reasonably be construed as an NOD with the May 2009 rating decision was received during the one-year period following the date of the June 2009 notification letter. Therefore, the May 2009 rating decision is final. The Veteran's earliest correspondence indicating disagreement with the denial of service connection for HIV was received by VA in October 2010, beyond the one-year period provided by law for filing an NOD with the May 2009 rating decision. While the Veteran has contended in his July 2014 VA Form 9 that he is entitled to have his October 2010 NOD to be accepted and considered timely, he has advanced no arguments in favor of his contention. Accordingly, the Board finds that the appeal to establish that the Veteran filed a timely NOD with the May 2009 rating decision as to the denial of service connection for HIV must be denied. 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, 1131; 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). Where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Diabetes Mellitus In the present case, the evidence of record reflects that the Veteran has diabetes mellitus. VA treatment records note that the Veteran was diagnosed with diabetes in June 2011. The Veteran's service treatment records show no complaints, findings, or diagnoses of diabetes, and the Veteran has not put forth any contentions as to how his currently diagnosed diabetes was caused or aggravated by his service. There is also no indication of a medical relationship between the current disability and service, and the Veteran has not put forth any contentions to support such a finding. There is no competent medical evidence linking diabetes to active service, and the record did not show that the Veteran complained of or showed symptoms of diabetes during his time in service, or within a year of discharge from service. 38 C.F.R. § 3.309(a). The record shows that the Veteran was diagnosed with diabetes approximately 27 years after discharge from active service. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Thus, the Board finds that diabetes did not have its onset in active service or for many years thereafter, and it is not otherwise related to active service. In conclusion, the Board finds that service connection for diabetes mellitus is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hypertension The Veteran is seeking service connection for hypertension. For VA purposes, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. The term hypertension means the diastolic blood pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. The evidence of record reflects that the Veteran is diagnosed with hypertension. Private treatment records note hypertension in April 2009, and VA treatment records note a diagnosis of hypertension in September 2010. However, there is no evidence that the Veteran had hypertension or elevated blood pressure readings in service. The Veteran's service treatment records show no complaints, findings, or diagnoses of hypertension. In his May 1979 Army Reserve entrance examination, his blood pressure reading was 112/60. When being treated for viral gastroenteritis in March 1982, the Veteran's blood pressure was recorded as 112/76. During January 1983 treatment for an upper respiratory infection, his blood pressure reading was 120/70. The Veteran did not undergo a separation examination, but in November 1983 it was noted that the Veteran had no complaints and that his current health was good. The service treatment records show that the Veteran did not have multiple readings in service constituting a diagnosis of hypertension for VA purposes. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. Additionally, he did not have any elevated blood pressure readings during service. There is also no evidence that the Veteran's hypertension is related to his service. The Veteran has not put forth any contentions as to how his currently diagnosed hypertension was caused or aggravated by his service, and has not submitted any additional medical evidence in support of a claim of hypertension. VA and private treatment records do not relate the Veteran's hypertension to service, and do not show that the Veteran had consistent blood pressure readings that qualified for a diagnosis of hypertension for VA purposes until 2009. Furthermore, there is no evidence that the Veteran's hypertension manifested to a compensable degree within a year of separation from service. 38 C.F.R. § 3.309(a). In sum, there is no evidence relating the Veteran's hypertension to service. For these reasons, service connection for hypertension is denied. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The appeal seeking to establish that the Veteran filed a timely NOD with a May 2009 rating decision which denied service connection for HIV is denied. Service connection for diabetes mellitus is denied. Service connection for hypertension is denied. REMAND Although the Board regrets the additional delay, further development is required prior to adjudication of the remaining claims. Regarding the claim for service connection for an acquired psychiatric disorder, the Veteran claims that his psychiatric disorder is the result of suffering military sexual trauma (MST) in service, specifically being sexually assaulted while working on base at the Walter Reed Army Medical Center. The Veteran indicated that he subsequently suffered from years of substance abuse, severe depression, panic attacks and anxiety attacks for no apparent reason, and secluded himself from family and friends. The matter was remanded by the Board in December 2014 for a supplemental medical opinion from the examiner who conducted the previous October 2012 VA examination. The Board's remand directives stated in part, that the examiner must identify all psychiatric disorders currently present and with regard to each psychiatric disorder, provide an opinion as to whether it was at least as likely as not that it was related to service, including any incident of MST. Although a supplemental medical opinion was obtained in August 2016, the examiner stated that the Veteran's primary mental health diagnosis was depression, and went on to discuss whether the Veteran's depression was related to service. However, the examiner did not discuss VA treatment records from June 2016, which reflect a diagnosis of anxiety disorder in addition to moderate recurrent major depression, and did not provide an opinion regarding whether anxiety disorder was related to the Veteran's service. Also, the examiner provided an opinion that it was less likely as not that the Veteran's depressive disorder was solely caused by MST or even his military service, but that his "reported MST may play a role in his depressive disorder." This opinion gives rise to the question of whether the Veteran's depressive disorder is at least partially related to service; however, the opinion is stated in speculative terms and is thus inadequate for rating purposes. Therefore, unfortunately, based on the above, the claim must be remanded to obtain a clarifying VA medical opinion. As the HIV issue is being claimed in part, as secondary to the acquired psychiatric disorder, it is inextricably intertwined and must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As these claims are being remanded, updated VA treatment records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file VA treatment records from October 2016 to the present. 2. After receiving all additional records, obtain a clarifying opinion from the psychologist who completed the October 2012 VA examination and August 2016 addendum opinion. If that examiner is not available, then please forward the claims folder to another appropriate specialist for review. The electronic claims file must be made available to the examiner for review in connection with the examination. An examination of the Veteran should only be ordered if the reviewing physician determines that one is necessary. Based on review of the pertinent evidence of record, the reviewing clinician should provide clarifying opinions as to the following: (A) Identify all acquired psychiatric disorder(s) that have been present during the pendency of the claim (since 2011) to include depressive disorder and anxiety disorder. (B) For each diagnosed acquired psychiatric disorder, to include depressive disorder and anxiety disorder, opine as to whether it is at least as likely as not (50 percent or better probability) that such disorder had its onset during or is otherwise related to his service, to include whether it is in part related to his service. In providing this opinion, the examiner should consider the alleged incidences of MST. The examiner must provide a complete rationale for any opinion expressed. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. 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 paragraphs, readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and afford them reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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 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