Citation Nr: 18156229 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 09-36 986 DATE: December 7, 2018 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for hypertension is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened. REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected type II diabetes mellitus and/or service-connected depressive disorder, is remanded. Entitlement to service connection for an eye disability, to include as secondary to service-connected type II diabetes mellitus and/or hypertension, is remanded. Entitlement to service connection for a kidney disability, to include as secondary to type II diabetes mellitus and/or hypertension, is remanded. Entitlement to service connection for an acquired psychiatric disorder other than depressive disorder, claimed as PTSD, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. A January 1997 rating decision denied entitlement to service connection for hypertension based on a determination that the evidence did not show a chronic disability or a relationship to service. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the rating decision. 2. Since the January 1997 rating decision, the Veteran’s treatment records include diagnoses of hypertension. In the May 2008 claim, the Veteran contends his hypertension is secondary to diabetes. Entitlement to service connection for type II diabetes mellitus was established in an August 2014 rating decision. The Board finds this new evidence is material, as it indicates the Veteran has a current diagnosis of hypertension, and that it may be secondary to a service-connected disability. Therefore, it raises a reasonable possibility of substantiating the claim of service connection for hypertension. 3. A May 2006 rating decision denied entitlement to service connection for PTSD based on a determination that the Veteran had failed to provide information concerning his stressor related to service, and the evidence did not show a diagnosis of PTSD. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the rating decision. 4. Since the May 2006 rating decision, in a May 2008 statement the Veteran outlined his claimed in-service stressors. An October 2016 VA primary care note indicates a positive screening test for PTSD. The Board finds this new evidence is material, as it indicates the Veteran may have a current diagnosis of PTSD which may be related to in-service stressors. Therefore, it raises a reasonable possibility of substantiating the claim of service connection for PTSD. CONCLUSIONS OF LAW 1. The January 1997 rating decision, which denied the Veteran’s claim of entitlement to service connection for hypertension, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017). 2. The additional evidence received since the January 1997 rating decision is new and material, and the claim of entitlement to service connection for hypertension is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The May 2006 rating decision, which denied the Veteran’s claim of entitlement to service connection for PTSD, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017). 4. The additional evidence received since the May 2006 rating decision is new and material, and the claim of entitlement to service connection for PTSD is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS FOR REMAND In October 2015, the Board granted entitlement to service connection for depressive disorder, and remanded the remaining claims for further development. In a February 2018 rating decision, the Agency of Original Jurisdiction (AOJ) incorrectly stated the Veteran can only receive service connection for one mental disability. Entitlement to service connection can be established for more than one mental health disability, and those disabilities are then to be rated pursuant to the General Rating Formula for Mental Disorders under 38 C.F.R. § 4.130. Accordingly, as previously characterized by the Board, the issue of entitlement to service connection for an acquired psychiatric disorder other than depressive disorder, claimed as PTSD, remains on appeal. The Veteran’s claims of entitlement to service connection for hypertension and for PTSD were previously denied in January 1997 and May 2006 rating decisions, respectively. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen the claim before the Board may consider the claim on the merits, regardless of whether the AOJ has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). As for a psychiatric disorder other than PTSD, new and material evidence is not necessary to reopen the claim as an additional disability was not addressed in the May 2006 decision. See Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996); Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). The United States Court of Appeals for Veterans Claims has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the Board combined the issues of entitlement to service connection for major affective disorder and for PTSD, and recharacterized the claim on appeal to entitlement to service connection for an acquired psychiatric disorder other than depressive disorder. In the May 2008 claim, the Veteran stated he seeks service connection for retinopathy. The medical evidence of record includes diagnoses of multiple eye disabilities. The Board has recharacterized the issue as entitlement to service connection for an eye disability to afford the Veteran a broader scope of review. See Browkowski v. Shinseki, 23 Vet. App. 79 (2009); see also Clemons, 23 Vet. App. 1. In an October 2014 statement, the Veteran stated he wished to withdraw the issues of entitlement to service connection for a heart condition, fatty liver, and radiculopathy of the upper and lower extremities from his perfected appeal. See September 2009 VA Form 9. Accordingly, these claims are not currently before the Board. 38 C.F.R. § 20.204.   1. Entitlement to service connection for hypertension is remanded. The Board cannot make a fully-informed decision on the issue of service connection for hypertension because no VA examiner has opined whether the Veteran’s hypertension is secondary to his now service-connected depressive disorder. The medical evidence of record includes the Veteran’s reports that his blood pressure increases in relation to psychiatric symptoms. See, e.g., March 2011 San Juan VAMC cardiology note; February 2001 VA mental disorders examination report. Further, the Board takes judicial notice that in November 2018, the National Academies of Science, Engineering and Medicine issued Veterans and Agent Orange: Update 11 (2018), and the update addresses whether there is an association between exposure to an herbicide agent and hypertension. The Veteran’s service personnel records confirm he served in the Repubic of Vietnam, and so under 38 C.F.R. § 3.307(a)(6)(iii), the Veteran is presumed to have been exposed to an herbicide agent. Accordingly, the Board finds a remand is required for an addendum medical opinion which considers this report. 2. Entitlement to service connection for an eye disability is remanded. 3. Entitlement to service connection for a kidney disability is remanded. A decision on the remanded issue of service connection for hypertension could significantly impact a decision on the issues of service connection for an eye disability and for a kidney disability, as medical evidence of record indicates these disabilities may be related to the Veteran’s hypertension. See, e.g., December 2015 VA kidney conditions examination report; Decemeber 2015 VA eye conditions examination report. Accordingly, the issues are inextricably intertwined, and a remand of the claims is required.   4. Entitlement to service connection for an acquired psychiatric disorder other than depressive disorder is remanded. In the October 2015 remand, the Board noted the record did not contain complete VA treatment records since 2010. The evidence of record indicates there are still outstanding relevant treatment records. Treatment records from the San Juan VAMC indicate that in March 2016, the Veteran’s primary care physician referred him for a psychology appointment for insomnia and flashbacks. An October 2016 VA primary care note states that on the last psychology evaluation, adjustment disorder with depressed mood and insomnia were diagnosed. The primary care physician also stated the Veteran was to be evaluated by mental health due to a positive PTSD screen. However, records of the 2016 psychology evaluation, and any subsequent evaluation for PTSD, are not of record. Further, a July 2011 New York VA HHS primary care note indicates the Veteran reported he was receiving mental health treatment at the Queens Vet Center. A remand is required to allow VA to obtain these outstanding records. Further, the Board finds a new VA examination is necessary to address whether the Veteran’s currently diagnosed psychiatric disorders other than depressive disorder, to include major affective disorder, adjustment disorder, and/or insomnia, are related to the Veteran’s active duty service, and/or the Veteran’s now service-connected depressive disorder. See, e.g., October 2016 San Juan VAMC primary cate note; February 2001 VA mental disorders examination report. 5. Entitlement to TDIU is remanded. In the October 2015 remand, the Board instructed the AOJ to schedule the Veteran for a VA examination to determine whether his service-connected disabilities prevent him from engaging in substantially gainful employment. However, the ultimate determination of unemployability is a legal question, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Nevertheless, medical evaluations are probative to understanding the level of functional impairment caused by a disability. A December 2015 VA examiner opined as to the functional effects caused by the Veteran’s service-connected diabetes, but a new VA examination as to the functional effects caused by the Veteran’s now service-connected depressive disorder was not obtained. On remand, the VA mental health examiner should address the effects of the Veteran’s depressive disorder on his ability to perform occupational tasks. The matters are REMANDED for the following action: 1. Obtain the Veteran’s outstanding VA mental health treatment records from April 2010 to the present, as well as all of the Veteran’s relevant VA treatment records from December 2017 to the present. All treatment records from the Vet Center in Queens, New York should also be obtained. 2. Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s hypertension. It is up to the discretion of the clinician as to whether a new examination is necessary to provide an adequate opinion. After a review of the claims file, and examination of the Veteran if deemed necessary by the clinician, the clinician is asked to respond to the following inquiries: a) Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s hypertension was either incurred in, or is otherwise related to, the Veteran’s military service, to include exposure to an herbicide agent? The clinician should specifically consider the Veterans and Agent Orange: Update 11 (2018) from the National Academies of Science, Engineering and Medicine. b) Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s current hypertension was caused by his service-connected depressive disorder? The clinician should address the Veteran’s reports that his psychological symptoms cause his blood pressure to increase. c) Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s current hypertension is aggravated by his service-connected depressive disorder? Aggravation indicates a worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to identify the baseline level of the disability that existed before aggravation occurred. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current acquired psychiatric disorder other than depressive disorder, and the functional effects of the service-connected depressive disorder. After a review of the claims file, and interview and examination of the Veteran, the examiner is asked to respond to the following inquiries: a) Identify with specificity all acquired psychiatric disorders, other than depressive disorder, that are currently manifested, or that have been manifested at any time since May 2008. The examiner should specifically address the diagnoses of major affective disorder, adjustment disorder, and insomnia of record, as well as the October 2016 positive PTSD screening test. b) For each acquired psychiatric disorder that is currently manifested or that has been manifested at any time since May 2008, the examiner should opine whether it is at least as likely as not (i.e. probability of 50 percent or greater) that such disability was either incurred in, or is otherwise related to, the Veteran’s active military service. The examiner should address the Veteran’s May 2008 statement regarding stressors during his Vietnam service. The examiner should also address the Veteran’s report that he has experienced mental health symptoms and “nerves” since his active duty service. c) For each acquired psychiatric disorder that is currently manifested or that has been manifested at any time since May 2008, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s acquired psychiatric disorder was caused by his service-connected depressive disorder? d) For each acquired psychiatric disorder that is currently manifested or that has been manifested at any time since May 2008, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s acquired psychiatric disorder is aggravated by his service-connected depressive disorder? Aggravation indicates a worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to identify the baseline level of the disability that existed before aggravation occurred. e) To the extent possible, the examiner should identify any functional impairments due to the Veteran’s service-connected depressive disorder, and discuss the effects of the Veteran’s depressive disorder on any occupational functioning. (Continued on the next page)   4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of service connection for eye and kidney disabilities. If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Delhauer, Counsel