Citation Nr: 18149353 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 15-41 050 DATE: November 9, 2018 ORDER The previously denied claim of entitlement to service connection for an acquired psychiatric disorder is reopened. The previously denied claim of entitlement to service connection for a skin disorder is not reopened. Entitlement to service connection for hypertension is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for headaches is remanded. FINDINGS OF FACTS 1. A February 1987 rating decision denied entitlement to service connection for a neuropsychological disorder and a skin disorder; the Veteran did not initiate an appeal, or submit new and material evidence within one year. 2. The evidence associated with the file since the February 1987 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder. 3. The evidence associated with the file since the February 1987 rating decision does not include evidence relating to an unestablished fact necessary to substantiate the claim; the evidence is redundant of evidence already of record; and the evidence does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a skin disorder. 4. Hypertension did not manifest during the Veteran’s period of service or within one year of separation from service, and is not otherwise shown to be etiologically related to the Veteran’s period of service. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence has not been received sufficient to reopen a claim of entitlement to service connection for a skin disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1131; 38 C.F.R. § 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from April 1966 to April 1968. For his honorable service, he was awarded a Vietnam Service Medal with Bronze Service Star, a Combat Infantryman Badge, and a Purple Heart, among others. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Additional VA examinations and VA clinical records were associated with the record that have not considered by the RO. Nevertheless, as these records do not address the disabilities decided herein, waiver of RO consideration is not necessary. Although VA did not provide the Veteran with a VA examination specifically for hypertension, such development is not necessary. VA’s duty to assist includes providing a medical examination when is necessary to decide on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, there is no objective medical evidence of hypertension in service, or any evidence indicating that there may be a nexus between currently diagnosed hypertension and the Veteran’s period of service. The Veteran’s statement that hypertension began in June 1966 is not competent, and directly contradicts the available medical evidence, including VA examinations in August 1968 and October 1986. Thus, VA did not have a duty to provide a VA examination. Neither the Veteran nor his representative has raised any other 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”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). New and Material Evidence - Service Connection In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received after an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). New evidence means existing evidence not previously submitted to agency decision makers. 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. 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. 38 C.F.R. § 3.156 (2017). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. 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. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted 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, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source. 38 C.F.R. § 3.156(c)(2). To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 1. Whether new and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for a skin condition A February 1987 rating decision denied entitlement to service connection for a skin disorder because there was no evidence of a skin condition in service, and the Veteran’s current tinea cruris was not otherwise due to service or exposure to Agent Orange. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the 1987 decision includes Veteran’s service treatment records (STRs), lay testimony, and August 1968 and October 1986 VA examination reports. The STRs were negative for a treatment for a skin disorder, although the Veteran was seen in the dermatology clinic for treatment of a sexually transmitted disease in November 1967. The October 1986 VA examiner diagnosed tinea cruris of the groin, but opined that tinea cruris was not noted in service, and not otherwise due to the Veteran’s period of service. The lay testimony consists of the Veteran’s report at the October 1986 VA examination that he had an eruption of the genitocrural area in service for which he did not seek treatment, and that the problem persisted since that time and was aggravated by hot weather. Evidence submitted after the 1987 decision includes private and VA treatment records, lay testimony, and a March 2013 VA examination report. The private treatment records show the Veteran was diagnosed with contact dermatitis June 1999 at the urethral opening attributed to a change in soap. VA treatment records are silent for a skin disorder. The Veteran’s lay testimony since the 1987 decision includes his August 2012 claim on which he reported his skin rash began in October 1966. At the time of the March 2013 VA examination, the Veteran did not have any signs of a current skin disorder, but did report using a daily cream on his groin area. The Board finds that new and material evidence has not been presented. While there is new evidence of record since the 1987 rating decision, that evidence either not material or it is redundant of evidence already of record. See 38 C.F.R. § 3.156(a). The private treatment records show a diagnosis of contact dermatitis related to a soap, and did not indicate that the skin disorder could be related to service. The testimony of onset of symptoms is redundant of the lay testimony that was already of record at the time of the 1987 rating decision, and such testimony was already considered by the VA examiner and RO. The VA treatment records and 2013 VA examination also fail to show evidence of a skin disorder related to service. Accordingly, for the above reasons, the Veteran’s claim is not reopened. 2. Whether new and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for an acquired psychiatric disorder The February 1987 rating decision also denied entitlement to service connection for a psychiatric disorder because no psychiatric disorder was diagnosed. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the 1987 decision includes Veteran’s service treatment records (STRs), lay testimony, and August 1968 and October 1986 VA examination reports. Those records are silent for any diagnosed psychiatric disorder. Instead, the October 1986 examiner concluded the Veteran did not have any signs or symptoms of a psychiatric disorder. Evidence submitted after the 1987 decision includes a Social Security Administration (SSA) psychological assessment diagnosing adjustment disorder with mixed anxious and depressed mood, and February 2010 VA treatment records noting a diagnosis of posttraumatic stress disorder (PTSD) The Board finds that new and material evidence has been presented. The evidence, including the SSA and VA treatment records, is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim - evidence of a diagnosed psychiatric disorder that may be etiologically related to the Veteran’s period of service as he is a combat Veteran. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises/does not raise a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all the above reasons, the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder is reopened. 3. Entitlement to service connection for hypertension. Service connection will be granted for a disability resulting from injury or disease incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a present disability, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In addition, hypertension may be presumed to have been incurred during service if it first became manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.307, 3.309. Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1337-38 (Fed. Cir. 2013) (noting that the continuity of symptomatology provisions apply only to listed chronic conditions). For VA purposes, the term hypertension means that 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 diastolic blood pressure less than 90. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2015). The Board finds that there is a current diagnosis of hypertension. See January 1999 private treatment records submitted by SSA; see February 2010 VA treatment record. Thus, the first element of service connection is met. See 38 C.F.R. § 3.303; Shedden, 381 F.3d at 1166-67. Nevertheless, the remaining criteria for service-connection for hypertension are not met. The evidence of record does not show that a chronic disease manifested in service or within one year of separation from service. See 38 C.F.R. § 3.303(b). Hypertension was not noted during service and no characteristic manifestations of hypertension were identified during service. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1337-38. STRs are silent for elevated blood pressure or hypertension. Furthermore, the evidence of record indicates that hypertension was not diagnosed within one year of service discharge. See 38 C.F.R. §§ 3.307, 3.309; Shedden, 381 F.3d at 1166-67; see Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of disorder). The Veteran underwent VA examinations in August 1968 and October 1986 and his blood pressure readings were normal. The October 1986 examiner specifically noted the Veteran did not have a medical history of hypertension. Hypertension was not noted in the medical record until January 1999, when a private treatment record documented the Veteran had a history of hypertension. On his August 2012 application for benefits, the Veteran wrote that his hypertension began in June 1966. The Veteran’s assertion is not supported by the objective evidence of record, and the Veteran, as a lay person, is not competent to self-diagnose hypertension. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Rather, the more probative objective evidence of record demonstrates that hypertension did not begin in service, nor was it diagnosed within one year of separation from service. Thus, service connection for a chronic disease on a presumptive basis is not warranted. The evidence also does not show that the currently diagnosed hypertension is otherwise related to service. None of the Veteran’s medical providers have attributed hypertension to the Veteran’s period of service, and there is no other indication in the record that hypertension is due to the Veteran’s period of service. Accordingly, entitlement to service connection for hypertension on a direct basis is also not warranted. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. This issue must be remanded to secure another VA examination and opinion that addresses new evidence received after the most recent March 2013 VA mental disorder examination. A medical opinion should be based on an accurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). When the Veteran was last examined by VA in March 2013, the examiner opined that the Veteran did not meet the criteria for any mental disorder diagnosis. The Veteran described anxiety in crowds, mild avoidance of thoughts related to the trauma, nightmares, sleep disruption, and anxiety. The examiner explained that the Veteran reported symptoms of mild to moderate frequency and intensity such that they could be considered towards a diagnosis of PTSD, although overall the Veteran did not report symptoms sufficient to meet the full diagnostic criterion. Overall, the Veteran’s reported symptoms did not result in gross impairment due to a serious mental illness in any domain of functioning based on his self-report and the available treatment records. VA treatment records continue to show an assessment of PTSD, and at a November 2015 VA mental health appointment the Veteran reported feeling more depressed and having more life stressors. The Veteran endorsed symptoms of increasing nightmares, increasing depressive symptoms, and increasing social isolation. A patient health questionnaire was significant for mild depression. Based on this new information, remand is required for another VA examination and opinion as the factual basis of the 2013 VA examiner’s opinion appears to have changed. Namely, the treatment records document worsening mental health symptoms that may be severe enough to warrant a diagnosis. Additionally, in November 2014 records from SSA were associated with the claims file. Those records included a June 1999 psychological assessment that resulted in a diagnosis of adjustment disorder with mixed anxious and depressed mood. On remand, the 1999 SSA records should be addressed by the VA examiner. 2. Entitlement to service connection for headaches is remanded. This issue must be remanded to obtain an adequate medical opinion based on an accurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Veteran underwent a VA headaches examination in March 2013, at which time the examiner opined that the claimed headache disorder was not due to service. The examiner’s opinion was based, in part, on a finding there was no documentation of a headache condition to VA primary care provider as of February 2010, or any treatment records related to headaches. That finding is not supported by the record, however, as February 2010 VA treatment records list headaches among the Veteran’s current problems. An April 2016 VA treatment record also reports the Veteran had a history of intermittent headaches that he treated with Tylenol. Thus, remand is required for another examination and opinion based on an accurate reporting of the Veteran’s medical history. The matter is REMANDED for the following action: 1. Obtain VA clinical records dated from July 2017 to the present. 2. Schedule the Veteran an appropriate examination to determine the etiology of any acquired psychiatric disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that any diagnosed psychiatric disorder had onset in, or is otherwise related to, active military service. (b.) The examiner must specifically address 1) a June 1999 psychological assessment noting a diagnosis of adjustment disorder with mixed anxious and depressed mood; and 2) a November 2015 VA mental health record documenting symptoms of increasing nightmares, increasing depressive symptoms, and increasing social isolation, and findings consistent with mild depression. 3. Schedule the Veteran with an appropriate examination to determine the etiology of his claimed headache disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a.) Elicit testimony from the Veteran regarding the onset and nature of his claimed headache condition. (b.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a headache disorder had onset in, or is otherwise related to, active military service. (c.) The examiner must specifically address 1) the Veteran’s 1968 report of medical history where he endorsed frequent headaches; 2) a February 2010   (d.) VA treatment records note listing headaches among the Veteran’s current problems; and 3) an April 2016 VA treatment record reporting a history of intermittent headaches treated with Tylenol. J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Smith, Associate Counsel