Citation Nr: 18143253 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 17-00 202 DATE: October 18, 2018 ORDER New and material evidence was not received to reopen a previously denied claim of service connection for exercise induced anaphylaxis, and the application to reopen is denied. New and material evidence has been received to reopen a previously denied claim of service connection for an acquired psychiatric disorder, to include depressive disorder and posttraumatic stress disorder (PTSD), and the application to reopen is allowed; to this extent only, the claim is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder and PTSD is remanded. Entitlement to service connection for Gulf War Syndrome as due to an undiagnosed illness manifested by unexplained pains is remanded. FINDINGS OF FACT 1. In a January 2003 rating decision, the RO denied the Veteran’s original claim for service connection for exercise induced anaphylaxis. In a letter dated later that month, the RO notified him of the determination and of his appellate rights, but he did not appeal the determination and the decision became final. 2. Evidence received since the last final rating decision in January 2003 does not raise a reasonable possibility of substantiating the claim of service connection for exercise induced anaphylaxis. 3. In a January 2003 rating decision, the RO denied the Veteran’s original claim for service connection for an acquired psychiatric disorder. In a letter dated later that month, the RO notified him of the determination and of his appellate rights, but he did not appeal the determination and the decision became final. 4. Evidence received since the last final rating decision in January 2003 raises a reasonable possibility of substantiating the claim of service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The January 2003 rating decision denying service connection for exercise induced anaphylaxis is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.105(a), 20.302, 20.1103 (2017). 2. The additional evidence received since the January 2003 rating decision is not new and material, and the claim of service connection for exercise induced anaphylaxis is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The January 2003 rating decision denying service connection for an acquired psychiatric disorder is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.105(a), 20.302, 20.1103 (2017). 4. The additional evidence received since the January 2003 rating decision is new and material, and the claim of service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1986 to July 1991. In May 2018, the Veteran filed a notice of disagreement with a January 2018 rating decision unrelated to the issues on appeal in this decision. VA records show that the agency of original jurisdiction (AOJ) is actively working this issue; therefore, the Board will not remand it for issuance of a statement of the case at this time. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). New and Material Evidence Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a NOD with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302 (2017). An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA 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 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Exercise Induced Anaphylaxis Here, the RO denied the Veteran’s service connection claim for exercise induced anaphylaxis in a January 2003 rating decision, finding that there was no evidence of a nexus. The evidence considered at the time included the Veteran’s service treatment records and VA and private medical records. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the decision. Thus, the January 2003 rating decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Relevant evidence received since the January 2003 denial of the claim includes the Veteran’s September 2012 petition to reopen; additional private and VA medical treatment records; a September 2013 VA examination report; and, the Veteran’s notice of disagreement and substantive appeal. Specifically, while the medical evidence continues to show a current diagnosis for exercise induced anaphylaxis, it does not relate the disability to the Veteran’s service. Furthermore, the September 2013 VA examiner opined that the disability was not related to the Veteran’s service, to include to any potential exposure to environmental hazards. The examiner explained that the Veteran denied any symptoms at separation and was originally diagnosed with exercise induced anaphylaxis in 2002, without any relationship to environmental issues, but rather after being hospitalized for syncopal episode after exercising in May 2002. This evidence is new and does relate to the unestablished element of a nexus in the prior denial. However, it does not raise a reasonable possibility of substantiating the claim, because it still fails to show evidence of a relationship between the exercise induced asthma and the Veteran’s active duty service. As such, the additional evidence received since the January 2003 final denial is not sufficient to reopen the claim. Therefore, new and material evidence was not received to reopen the previously denied service connection claim for exercise induced anaphylaxis. An Acquired Psychiatric Disorder Here, the RO denied the Veteran’s service connection claim for an acquired psychiatric disorder in a January 2003 rating decision, finding that there was no evidence of a current diagnosis of PTSD and that other psychiatric disorders had no nexus to service. The evidence considered at the time included the Veteran’s service treatment records and VA and private medical records. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the decision. Thus, the January 2003 rating decision became final. See 38 U.S.C. § 7105 (d)(3); Bond, 659 F.3d 1362; 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Relevant evidence received since the January 2003 denial of the claim includes the Veteran’s May 2012 petition to reopen; additional private and VA medical treatment records; a September 2013 VA examination report; the Veteran’s notice of disagreement and substantive appeal; and, October 2016 and August 2018 private psychology reports including psychiatric diagnoses and positive nexus opinions. This evidence, specifically the October 2016 and August 2018 private opinions, relates to the unestablished element of a both a current disability and a nexus in the prior denial. The additional evidence received since the January 2003 final denial is therefore new and material. The criteria for reopening the claim for service connection for an acquired psychiatric disorder are therefore met. REASONS FOR REMAND The Board finds that a remand is necessary to obtain an addendum medical opinion regarding the Veteran’s service connection claim for hypertension and to provide him with a VA examination for his service connection claim for an acquired psychiatric disorder and undiagnosed illness manifested by unexplained pains. In addition, attempts to verify the circumstances of the Veteran’s service and his reported stressors should be made. Hypertension The Veteran underwent a VA examination for hypertension in September 2013, at which time the examiner confirmed a diagnosis of hypertension since 2003, and opined that the Veteran’s hypertension was not related to his Gulf War environmental exposure, because 99 percent of hypertension is essential in nature, which is a primary disease process that is not secondary to any other disease process in the body. The examiner did not discuss elevated blood pressure during service in the opinion. In support of his claim, the Veteran submitted a July 2016 independent medical evaluation, authored by an internal medicine specialist, who opined that the Veteran’s hypertension was at least as likely as not aggravated beyond normal progression due to his service; specifically, due to symptoms such as stress, prolonged sub-clinical anxiety, depression, and fear. In addition, the internal medicine specialist noted that heat was another factor exacerbating the Veteran’s hypertension. In support of this opinion, the internal medicine specialist noted that on the Veteran’s enlistment examination on August 11, 1986 and induction examination on September 23, 1986, documented elevated blood pressure of 150/88. Additional in-service blood pressure readings of 154/78 and 159/78 in July 1987, and 130/68 during his July 1991 separation examination, were noted. 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. Although the Veteran had elevated numbers during service, the above-mentioned readings are not considered hypertension for VA purposes. The Veteran is therefore presumed sound on entrance with respect to hypertension and the internal medicine specialist’s opinion as to aggravation of a preexisting disability does not assist the Board in adjudicating the appeal. Accordingly, an addendum medical opinion is necessary prior to making a decision on the merits. An Acquired Psychiatric Disorder The Board initially notes that the Veteran provided numerous statements regarding his claimed stressor, generally indicating that he feared for his life during his deployment. However, attempts to verify his stressor have not been made. On remand, the RO should attempt to verify where the Veteran was stationed during his active duty service and attempt to corroborate his reported stressors. The Veteran underwent a VA PTSD examination in September 2013, at which time the examiner indicated that he did not meet the criteria for a diagnosis of PTSD, but rendered diagnoses of alcohol abuse and depressive disorder not otherwise specified. During the examination, the Veteran reported that he started to feel depressed after his deployment to Iraq; however, his reported stressors were not discussed, and the examiner stated that it was not necessary because he did not meet the criteria for PTSD. The examiner noted that the Veteran’s service treatment records show that he was convicted of a DUI prior to his deployment and participated in a six-week residential alcohol rehabilitation program, and the Veteran reported that he quit drinking approximately in 1994. The examiner noted that the Veteran was not treated for depression until 2002, and opined that there was no evidence to suggest that his symptoms of depression were caused by or related to his military service, and that his alcohol abuse was due to his own misconduct. Of note, the examiner indicated that due to the Veteran’s prior strokes most responses were provided by the Veteran’s sister, but he was able to understand most of what was asked, and write some of the answers. The Veteran submitted a two-part private opinion authored by a clinical psychologist, who interviewed the Veteran’s family members in his presence in October 2016 and August 2018. The October 2016 assessment begins with review of the record indicating that the Veteran’s first treatment was in 2002. The psychologist opined that the Veteran met the criteria for a diagnosis of PTSD which was directly related to in-service stressors from Desert Storm. The psychologist provided the same opinion after the August 2018 interview. Nevertheless, the opinion was in reliance on the Veteran’s lay reports of stressors that have not been corroborated. Under the facts of this case, the Board notes that the Veteran’s military specialty occupation was basic hospital corpsman and field medical service technician; however, his reported stressors are combat specific, which have not been confirmed by the record. Accordingly, an attempt to verify the circumstances of the Veteran’s service as well as his claimed stressors should be made, and an addendum medical opinion should be obtained once all development is completed. Gulf War Syndrome/Undiagnosed Illness In his September 2012 claim for compensation, the Veteran simply listed “Gulf War Syndrome” as the claimed disability. However, in his July 2014 notice of disagreement, he indicated that his claim for gulf war syndrome was due to “unexplained pains all over that are unprovoked at different times.” Initially, the Board notes that the objective evidence is conflicting as to whether the Veteran had a qualifying Persian Gulf Service (defined by 38 C.F.R. § 3.317 as serving in the SWA theater of operations from August 2, 1990, to the present). SWA is defined as: Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, UAE, Oman, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and airspace above these locations. 38 C.F.R. § 3.317(e). His DD-214 indicates that he “participated in support of Operation Desert Shield/Storm.” It further notes “Date detached this separating activity: 91JUL22.” Box (f) shows no foreign service, and box (g) shows 10 months and 2 days of sea service. However, it shows that the Veteran is the recipient of the Sea Service Deployment Ribbon and Southwest Asia Service Medal with Bronze Star. The Southwest Asia Service Medal is potentially sufficient evidence of Southwest Asia service, but it was also available to individuals serving in countries that do not fall into the definition (Israel, Egypt, Turkey, Syria, and Jordan). In a September 2002 statement, the Veteran indicated that he went ashore at Kuwait and referred to a Kuwait beach assault. During a September 2013 VA Gulf War examination, he stated that he spent 10 months in Saudi Arabia during Desert Storm, which the examiner noted was “not support[ed] by personnel records,” and during his September 2013 PTSD examination, he reported that he was deployed in Iraq. The Board finds that it is first necessary to establish whether the Veteran had qualifying Persian Gulf Service. The matters are REMANDED for the following action: 1. Ensure that outstanding VA treatment records dated since November 2013 are associated with the claims file. 2. Contact the relevant departments, including as appropriate the RMC, NPRC, NARA, DPRIS, or JSRRC, to determine whether the Veteran’s military personnel records are available. A September 2002 response to request of information indicates that the Veteran’s file was incomplete, but there is no formal finding of unavailability. Attempt to obtain the deck logs of the ship(s) on which the Veteran served for the period of time he was aboard. In addition, attempt to verify the dates, locations, and circumstances of the Veteran’s active duty service, specifically his deployment during the Operation Desert Storm/Shield. Please note that the Veteran reported service in Saudi Arabia, Iraq, and Kuwait, and combat service. Confirm whether the Veteran served in Iraq, Kuwait, Saudi Arabia, the Gulf of Oman, the Persian Gulf, the Arabian Sea, or the Red Sea. If the complete personnel records and deck logs cannot be obtained, this must be documented in the claims file and the Veteran must be notified. 3. Complete all development necessary regarding claims of entitlement to service connection for an acquired psychiatric disorder, to include verifying the Veteran’s reported stressors. Regardless of whether the Veteran has a diagnosis of PTSD, the claimed stressors are relevant to his claim for depression. 4. Thereafter, return the claims file to an appropriate VA examiner for an addendum opinion as to the nature and etiology of the Veteran’s hypertension. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the report that the claims file was reviewed. After careful review of the record, the examiner is asked to respond to the following: Based on the Veteran’s in-service symptoms and blood pressure readings, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that his hypertension had its onset during active duty service or is otherwise causally or etiologically related to it. In doing so, the examiner is asked to specifically address the July 2016 internal medicine specialist’s opinion. See VBMS entry 08/26/2016 titled “Medical Treatment Record – Non-Government-Facility.” The examiner should provide a complete rationale for all opinions. 5. Only after directives 1, 2, and 3 above are fulfilled, provide the Veteran with a VA mental health examination to determine the nature and etiology of any psychiatric disorder diagnosed at any time since May 2012. Please note that the Veteran’s condition may prevent him from reporting for an examination, as such, please accommodate his needs, to include scheduling a telemedicine interview instead of an in-person examination. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the examination report that the claims file was reviewed. After a careful review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Identify all psychiatric disorders diagnosed at any time since May 2012, using the diagnostic criteria of the DSM-5. A diagnosis of PTSD must be ruled in or excluded. Please address: the private psychologist’s October 2016 and August 2018 opinions; VBMS entry on 10/17/2016 titled “Medical Treatment Record – Non-Government-Facility,” and VBMS entry on 08/29/2018 titled “Correspondence.” (b) Identify the specific stressor(s) underlying any PTSD diagnosis, to include any fear of hostile military activity and or other combat stressors. (c) For any other currently diagnosed psychiatric disorder, including depressive disorder, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) had its onset during active duty service or is otherwise causally or etiologically related to it. Please address: VA discharge note dated on April 22, 2012, which indicates that the Veteran had a history of depression since 1991 and intermittently was prescribed different antidepressants (VBMS entry 03/26/2012 titled “Medical Treatment Record – Government Facility” p.4. Provide a complete rationale for all opinions. 6. If, and only if, it is determined that the Veteran had qualifying Persian Gulf Service, provide him with a new VA examination to determine the nature and etiology of his reported “unexplained pains all over that are unprovoked at different times.” The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the examination report that the claims file was reviewed. Please note that the Veteran’s condition may prevent him from reporting for an examination, as such, please accommodate his needs to the extent possible or obtain a medical opinion in lieu of an in-person physical examination that will address the Veteran’s lay assertions and medical evidence of record. After a careful review of the record and examination of the Veteran, the examiner is asked to respond to the following: Identify any symptoms of “unexplained pains all over that are unprovoked at different times.” For any such symptoms, please state whether they are: a) associated with any specific pathology or diagnosed disorder b) considered an “undiagnosed illness” c) considered “a medically unexplained chronic multi-symptom illness” related to verified service in Southwest Asia. Provide a complete rationale for all opinions. LAURA E. COLLINS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel