Citation Nr: 18154004 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-31 415 DATE: November 28, 2018 ORDER New and material evidence having been received, the petition to reopen a claim of entitlement to service connection for hypertension is granted. REMANDED Entitlement to an initial increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. Service connection for hypertension was denied in a July 2009 Board of Veterans’ Appeals (Board) decision; the Veteran did not file an appeal. 2. Since the July 2009 Board decision that denied service connection for hypertension, VA received evidence that was not previously of record and goes to a previously unestablished fact. CONCLUSIONS OF LAW 1. The July 2009 Board decision that denied service connection for hypertension became final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 2. Since the July 2009 Board decision, new and material evidence was received to reopen the previously denied claim for service connection for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1977 to February 1981 and from March 1981 to April 1986. The Veteran also served on active duty from November 1990 to June 1991 in support of Operation Desert Shield/Desert Storm. This matter comes before the Board on appeal from two rating decisions issued by Department of Veterans Affairs (VA) Regional Offices (ROs). The first, an October 2011 rating decision granted service connection for PTSD and assigned a 50 percent rating, effective June 30, 2005. Subsequently, a September 2017 (notified October 2017) rating decision, increased the Veteran’s rating for PTSD from 50 percent to 70 percent, also effective June 30, 2005. The second, a November 2014 rating decision, confirmed and continued a previous denial of service connection for hypertension. 1. New and Material Evidence After reviewing the pertinent medical and lay evidence of record, the Board finds that new and material evidence has been received such that the petition to reopen the claim of entitlement to service connection for hypertension is granted. The November 2014 rating decision reopened the Veteran's claim of service connection for hypertension. Nevertheless, the issue of whether new and material evidence has been presented must be determined by the Board de novo, as the matter is a jurisdictional issue that the Board must address. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Where a claim has been finally adjudicated, new and material evidence is required in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which, by itself or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening a claim, evidence received is generally presumed credible unless evidence is inherently incredible or beyond the competence of a witness. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Id. at 117-20. In this case, the claim for service connection for hypertension is reopened because since the final July 2009 Board decision denying service connection, new and material evidence has been received. The Board issued a final decision in July 2009 that denied service connection based on no in-service diagnosis of hypertension. Unless reconsideration is ordered, Board decisions are final when issued. 38 C.F.R. § 20.1100(a). The Veteran did not appeal the Board's decision to the United States Court of Appeals for Veterans Claims. In April 2012, the Veteran filed for secondary service connection for hypertension due to service-connected PTSD and chronic fatigue syndrome. The RO denied the claim for secondary service connection in an August 2013 rating decision based on an VA examiner’s opinion that PTSD is not a cause of hypertension and the Veteran’s condition did not manifest within a year of separation from service. This decision did not become final because the Veteran submitted new evidence within a year of the issuance of the rating decision. Then in April 2014, the Veteran filed a claim for service connection for hypertension arguing new and material evidence existed. The RO issued a rating decision in November 2014 that granted the petition to reopen the claim but reaffirmed the previous denial of service connection. The Board finds that there has been new and material evidence submitted in the case since the final Board decision in July 2009. The Veteran received a VA examination in April 2013 and the examiner stated that the Veteran has had hypertension since 1987. A diagnosis of hypertension in 1987 may fall within one year of the Veteran’s separation from service in 1986. A diagnosis of hypertension in 1987 would be material to the Veteran’s claim of service connection because the Veteran would have a diagnosis within one year of separation. See 38 C.F.R. § 3.309(a) (listing hypertension as a chronic disease). Therefore, Board finds in favor of the appellant that there is new evidence that relates to an unestablished element of the previously denied claim and raises a reasonable possibility of substantiating the claim, as it potentially establishes a diagnosis within one year of the Veteran’s separation from service. Therefore, the claim is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. at 120-21. REASONS FOR REMAND 1. Entitlement to an initial increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. In September 2017, a RO granted the Veteran an increased rating, from 50 percent to 70 percent, for PTSD. In the rating decision the RO stated that the grant of a rating of 70 percent met the Veteran’s specific request and therefore, the decision constituted a full grant of benefits. However, the Board finds that the record lacks a clear statement of intent to withdraw the PTSD claim on the basis of a grant of 70 percent. Without such a clear statement of intent, the Board finds that the increased rating of 70 percent did not constitute a full grant of benefits and therefore, the Board requires further development to determine if the Veteran is entitled to a rating in excess of 70 percent for PTSD. The Veteran’s psychiatric treatment records indicate that the Veteran suffers from occupational and social impairment with deficiencies in most areas. The Veteran is prescribed three medications related to his PTSD symptoms, Busprione (nerves), prazosin (nightmares), and sertraline (anxiety). The Veteran was provided a VA examination in August 2011. The examiner found that the Veteran suffered from a significant amount of PTSD symptoms. The examiner noted recurrent thoughts and dreams of the traumatic event, symptoms of avoidance, difficulty with sleep, outbursts of anger, difficulty concentrating, hypervigilance, anxiety, and memory loss. The Veteran’s treatment records since 2005 also indicate significant PTSD related symptoms. In a May 2013 treatment note, the Veteran stated that he was forced to retire from his corrections job due to making mistakes such as forgetting keys. Treatment notes in February and September of 2016 indicate that the Veteran would like to work but is unable to because of the presence of PTSD symptoms such as nervousness around others. In March 2018, another treatment note references the Veteran’s difficulty in holding a job because of his PTSD. These treatment notes indicate that the Veteran’s PTSD symptoms may have worsened since his last VA examination that was provided in 2011. There have been developments related to the occupational abilities of the Veteran and indications of worsening memory loss symptoms. Therefore, the Board finds that a new VA examination is required to provide a more current evaluation of the Veteran’s PTSD symptoms since the last VA examination in 2011. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a total disability rating based on individual unemployability (TDIU) will be considered to have been raised by the record as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453–54 (2009). In this case, the Board recognizes that the record contains employment related evidence sufficient to indicate TDIU may be warranted based on employment related issues due to PTSD symptoms such as memory loss. Remand is necessary to allow for further evidentiary development regarding a claim for TDIU. For instance, submittal of the required TDIU form and evidence relating to the Veteran’s employment history. The Board also notes that a claim for TDIU in this case is inextricably tied to the remanded PTSD issue. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected PTSD, is remanded. The Board finds that additional development is necessary before it can adjudicate the issue of entitlement to service connection for hypertension, to include as secondary to PTSD. The April 2013 VA examiner notes that the Veteran has had hypertension since 1987. A diagnosis of hypertension in 1987 may constitute a diagnosis of the condition within one year of separation from service. The diagnosis would have occurred following the period of service that concluded in 1986, prior to the Veteran’s service for Operation Desert Storm/Shield that began in November 1990. In addition to the VA examiner’s note regarding a diagnosis in 1987, there are also several instances in the Veteran’s Service Treatment Records (STRs) that contain blood pressure readings. The readings include: 124/96 (12/1982), 154/94 (04/1986), 160/90 (date unclear). Finally, the April 2013 VA examiner broadly discounted any possibility that the Veteran’s service-connected PTSD could be a cause or an aggravating factor in the Veteran’s hypertension. However, there are studies that establish a possible connection between PTSD and hypertension. Based on the studies in existence, the VA examiner’s opinion lacks necessary reasoning and/or rationale behind a finding that there is no connection between the Veteran’s service-connected PTSD and his claim for hypertension. The matter is REMANDED for the following actions: 1. Contact the appropriate sources and request any treatment records not already associated with the file. 2. After completing #1, arrange for an appropriate VA clinician to review the Veteran’s claims file and provide a medical opinion regarding the etiology of his hypertension. A full VA examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence. Review of the claims file should be noted in the examiner’s report. The examiner should explain the reasons for any opinion offered. The examiner must consider lay reports from the Veteran along with pertinent medical evidence, including medical literature and studies related to the connection between PTSD and hypertension. See American Heart Association, Severe war injuries and PTSD can impact hypertension risk (Mar. 2018). If the examiner cannot offer an opinion without resort to speculation, he or she should explain why and state what additional evidence, if any, would be required to offer an opinion. Based on a review of the record, the provider should offer an opinion that responds to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease. (b.) Whether it is at least as likely as not (50 percent or greater probability) that hypertension (i) manifested to a compensable degree within one year of April 29, 1986 or June 4, 1991, or (ii) was present in service. Note: A compensable rating means – Diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control (c.) Whether it is at least as likely as not that the Veteran’s hypertension is: (1) proximately caused by the Veteran’s service-connected PTSD, or (2) aggravated beyond its natural progression by service-connected PTSD. 3. Request the Veteran complete a TDIU form (VAF 21-8940), contact the appropriate sources regarding employment history, and request any employment related records not already associated with the file. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Watkins, Law Clerk