Citation Nr: 1807080	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  12-34 944	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension, to include as secondary to service-connected disabilities.

2.  Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected disabilities.

3.  Entitlement to service connection for posttraumatic stress disorder (PTSD), to include as secondary to service-connected disabilities.


REPRESENTATION

Veteran represented by:	Disabled American Veterans




WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Claire Davidoski, Associate Counsel


INTRODUCTION

The Veteran had active service from July 1983 to November 1983, from January 1988 to May 1988, and from September 2002 to November 2003.  He had service in the Army National Guard from July 1986 to June 1999 and service in the Armed Forces Reserves until September 2012.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the North Little Rock, Arkansas Regional Office (RO) of the Department of Veterans Affairs (VA). 

In September 2015, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) on the issues currently on appeal.  A transcript of the hearing is of record.  

This case was previously before the Board in June 2009 and February 2011 for other service connection disability claims not currently on appeal, and in December 2015 for the claims which are currently on appeal.  In December 2015, the Board remanded the Veteran's claims for further development and granted a claim for service connection for tinnitus.

The issues of entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities, and entitlement to service connection for PTSD, to include as secondary to service-connected disabilities, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  A July 2005 rating decision denied service connection for hypertension; the Veteran was notified of the rating action and of his appellate rights.  The Veteran did not perfect an appeal on this issue, and new and material evidence was not submitted within one year of the decision.
       
2.  The evidence received since the July 2005 denial relates to an unestablished fact necessary to substantiate the claim for service connection for hypertension and raises a reasonable possibility of substantiating the claim.

3.  The Veteran's hypertension manifested within one year of his active service.


CONCLUSIONS OF LAW

1.  The July 2005 rating decision that denied service connection for hypertension is final.  38 U.S.C. § 7105(c) (2000); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005).   

2.  New and material evidence has been received to reopen the previously denied claim for service connection for hypertension.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017).

3.  The criteria for service connection for hypertension have been met.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).





REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.103, 3.159 (2017).  Because the Board is granting the benefit sought by the Veteran, any error with respect to VA's duty to notify or assist does not prejudice the claimant and need not be discussed.

II.  New and Material Evidence

Generally, a final decision issued by the agency of original jurisdiction may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered.  38 U.S.C. § 7105 (c), (d)(3).  However, if evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim.  38 U.S.C. § 5108.

"New evidence" is evidence that has not previously been reviewed by VA adjudicators.  "Material evidence" is 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 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 (a) (2017).

In determining whether evidence is new and material, the credibility of the newly presented evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).  The Board must review all of the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened.  Hickson v. West, 12 Vet. App. 247 (1999).

The claim for service connection for hypertension is based on the same factual basis as the previously denied claim for service connection for hypertension, which was denied in a July 2005 rating decision on the basis that the Veteran's hypertension was not shown to have been incurred in or caused by his military service.  The Veteran did not perfect an appeal on this issue, nor did he submit new and material evidence within one year following the decision.  Thus, the decision became final.  Accordingly, new and material evidence must be received to reopen the claim of entitlement to service connection for hypertension.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103.

The pertinent evidence received since the July 2005 denial includes a November 2004 private treatment record showing the Veteran was treated for high blood pressure.  This record indicates that the Veteran's hypertension symptoms possibly manifested to a compensable degree within one year of his separation from active service, and therefore raises a reasonable possibility of substantiating the claim based on a presumptive service connection for chronic diseases.  Thus, as new and material evidence has been received, the claim for service connection for hypertension is reopened.   

III.  Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303.

Service connection requires competent evidence showing: (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 (Fed. Cir. 2004).

Additionally, service connection can also be established through application of a statutory presumption for chronic diseases, like hypertension, when manifested to a compensable degree within a year of separation from service.  38 C.F.R. §§ 3.307, 3.309.  If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of "continuity of symptoms" after service is required for service connection.  38 C.F.R. § 3.303(b).  

Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service connected disability.  38 C.F.R. § 3.310(a).  Secondary service connection may also be established for a disability which is aggravated by a service connected disability.  

In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability.  Wallin v. West, 11 Vet. App. 509 (1998).

Hypertension

The Veteran is currently diagnosed with hypertension.  A November 2004 private treatment record from the Family Clinic of Ashley County, notably dated one year after the Veteran separated from active service, shows that he presented with elevated blood pressure and was prescribed an antihypertensive drug.  Pursuant to Diagnostic Code 7101, hypertension can be compensable as 10 percent disabling when diastolic pressure is 100 or more.  38 C.F.R. § 4.104, Diagnostic Code 7101 (2017).  Being that the Veteran exhibited diastolic pressure of 100 in the November 2004 treatment visit, the Board finds that it is at least as likely as not that the Veteran's hypertension manifested to a compensable degree within one year following active service.  As such, service connection for hypertension is warranted as the criteria for a presumptive service connection are met.  Further, because service connection has been established, the Board finds it unnecessary to address whether the Veteran's hypertension is secondary to a service-connected disability.





ORDER

New and material evidence having been received, the claim for service connection for hypertension is reopened. 

Service connection for hypertension is granted.


REMAND

The Veteran contends that his OSA is related to his military service.  The Veteran was provided a sleep apnea VA examination in March 2016 where the examiner opined that the Veteran's OSA was not related to his active service because there was no evidence it incurred in service.  However, the examiner did not consider active duty for training (ACDUTRA) periods during the Veteran's time as a reservist.  Subsequent to the December 2015 Board remand, the AOJ verified the Veteran's ACDUTRA periods for the year 2001 only.  The Veteran was diagnosed with OSA by a sleep study in 2010 while he was a reservist.  The Board finds that the AOJ should verify the Veteran's service from his last date of active service in November 2003 through separation from the Reserves in 2012, including all periods of active duty for training.  After service has been verified, an addendum opinion should be obtained to consider whether there is a nexus for the Veteran's OSA and any periods of active service, to include ACDUTRA periods.  In addition, since the Veteran is now asserting that his OSA is secondary to a service-connected disability, the opinion should also address the secondary contention.

Regarding the Veteran's claim for service connection for PTSD, the Veteran was afforded PTSD VA examinations in October 2006 and March 2016.  The October 2006 VA examiner found that the Veteran had a diagnosis of PTSD, but the March 2016 VA examiner found that he did not.  However, it appears that the March 2016 VA examination did not address all prior stressor statements made by the Veteran, which include his statement that his unit came under fire by missiles while he was deployed to a combat zone.  The Board finds that this statement, which was corroborated by a buddy statement submitted in September 2011, indicates that the Veteran has a stressor based on fear of hostile military or terrorist activity.  An addendum opinion is needed to clarify the conflicting PTSD diagnoses and to address this specific stressor.  

Accordingly, the case is REMANDED for the following actions:

1.  Verify the Veteran's military service since November 2003 through his separation from the Armed Forces Reserves, including all periods of active duty for training and inactive duty for training.

2.  After verifying the Veteran's military service through separation from the Armed Forces Reserves, return the claims file to the examiner who conducted the March 2016 Sleep Apnea VA examination in order to obtain an addendum opinion.  If the March 2016 Sleep Apnea VA examiner is no longer available, the opinion should be rendered by another medical professional.  If an opinion cannot be provided without an examination, one should be provided.  The examiner should answer the following questions:

A)  Is it at least as likely as not (50 percent or greater) that the Veteran's OSA was either incurred in or caused by or aggravated while performing active duty or ACDUTRA?

B) Is it at least as likely as not (50 percent or greater) that the Veteran's OSA was either caused or aggravated (i.e. made worse by the service connected disability) by a service connected disability? Why or why not?

If aggravation is found, the examiner must identify the baseline level of severity of the nonservice-connected disease or injury by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. If this cannot be done, it should be explained why.

3.  Return the claims file to the examiner who conducted the March 2016 PTSD VA examination in order to obtain an addendum opinion.  If the March 2016 PTSD VA examiner is no longer available, the opinion should be rendered by another medical professional.  If an opinion cannot be provided without an examination, one should be provided.  The examiner should answer the following questions:

A)  The examiner should assume the Veteran has a stressor based on fear of hostile military or terrorist activity and address whether the Veteran has had a diagnosis of PTSD at any time during the pendency of the appeal.  The examiner should specifically address the 2006 VA examination noting a diagnosis of PTSD.

B)  If the examiner finds that the Veteran has had PTSD at any time during the pendency of the appeal, is it at least as likely as not (50 percent or greater) that the Veteran's PTSD was either caused or aggravated (i.e. made worse by the service connected disability) by a service connected disability? Why or why not?

If aggravation is found, the examiner must identify the baseline level of severity of the nonservice-connected disease or injury by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  If this cannot be done, it should be explained why.

4.  Then readjudicate the appeal.  If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 

The Veteran 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



______________________________________________
MATTHEW W. BLACKWELDER 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs