Citation Nr: 18115433 Decision Date: 07/03/18 Archive Date: 07/02/18 DOCKET NO. 15-00 089A DATE: July 3, 2018 ORDER New and material evidence not having been received, the claim for service connection for hypertension is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD) is remanded. Entitlement to an initial rating in excess of 10 percent for Hepatitis C is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to compensation benefits, pursuant to the provisions of 38 U.S.C. § 1151, for nerve damage of both legs is remanded. FINDINGS OF FACT 1. The Veteran’s petition to reopen his claim for service connection for hypertension was previously denied in a July 2015 Board decision; the Veteran did not timely file an appeal to the United States Court of Appeals for Veterans Claims (Court). 2. Additional evidence received since the July 2015 Board decision is cumulative and redundant of the evidence of record at the time of that decision, and does not relate to an unestablished fact necessary to substantiate the claim for service connection for hypertension, or raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The July 2015 Board decision denying service connection for hypertension is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1001, 20.1100. 2. New and material evidence has not been received to reopen the Veteran’s claim for service connection for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1974 to February 1977. This matter is before the Board of Veterans’ Appeals (Board) on appeal from September 2011 and February 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In a July 2015 decision and remand, the Board, in part, denied the Veteran’s claim to reopen a claim for service connection for hypertension and remanded the issues of entitlement to service connection for hepatitis C, entitlement to service connection for an acquired psychiatric disorder other than PTSD, entitlement to compensation benefits pursuant to 38 U.S.C. § 1151, and entitlement to a TDIU. The February 2016 rating decision granted service connection for hepatitis C and denied the Veteran’s claim to reopen his claim for service connection for hypertension. The Veteran has appealed the initial rating assigned for hepatitis C. In a May 2017 VA Form 9, the Veteran requested a Board hearing. However, in a May 2018 statement, the Veteran withdrew his hearing request. Therefore, the Board may proceed to adjudicate the appeal. As noted in the July 2015 remand, the issue of entitlement to nonservice-connected pension benefits has been raised by the record in a February 2010 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). Hypertension The RO originally denied service connection for hypertension in July 2006 on the basis that there was neither a showing of elevated blood pressure nor a diagnosis of hypertension in active service or within the first post-service year. The evidence of record at the time of the denial included the Veteran’s service treatment records, VA treatment records, which first showed a diagnosis of hypertension in 2001, and statements from the Veteran asserting that hypertension was related to service. The Veteran did not appeal the decision or submit new evidence within one year of the decision. Therefore, the rating decision became final. In a June 2009 rating decision, the RO again denied the Veteran’s claim to reopen his claim for service connection for hypertension. Within one year of the June 2009 rating decision, the Veteran again claimed service connection for hypertension in February 2010, and additional evidence in the form of private treatment records for hypertension was submitted. In a September 2011 rating decision, the RO denied the claim to reopen a claim for service connection for hypertension. The Veteran timely appealed the decision and in a July 2015 decision, the Board denied the claim on the basis that the new evidence received since the last final denial was not material for purposes of reopening the claim. Specifically, the evidence did not include any medical opinion that suggested hypertension had its clinical onset during active service or within the first post service year, or that hypertension was otherwise related to the Veteran’s active service. The Veteran was notified of the decision and his rights to appeal were explained. The Veteran did not appeal the decision to the Court. The Veteran filed a motion for reconsideration, which was denied in September 2015. He did not appeal the motion for reconsideration to the Court. Therefore, the July 2015 decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1001, 20.1100. Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary 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 is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. In determining whether evidence is new and material, the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); 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.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received 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, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118 (2010). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512 (1992). Such evidence is presumed to be credible for determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. Here, the evidence received since the July 2015 Board decision includes VA treatment records, private treatment records, and statements from the Veteran expressing his belief that his hypertension began in service. The new private and VA treatment records reflect that the Veteran has hypertension. Although new, the records are not material. Evidence that the Veteran had a diagnosis of hypertension was previously of record. In a May 2017 VA Form 9, the Veteran stated that he had hypertension in basic training. As noted above, the Veteran’s service treatment records were in the Veteran’s claims file at the time of the last final denial in July 2015. The Veteran’s statement is also cumulative and redundant of statements that he made prior to the last final denial asserting that his hypertension began in service. After reviewing the evidence of record, the Board finds that the new evidence is cumulative and redundant of the evidence of record at the time of the July 2015 decision. There is no evidence relating to an unestablished fact necessary to substantiate the claim for service connection for hypertension, such as a medical nexus opinion. There is also no evidence that raises a reasonable possibility of substantiating the claim. Accordingly, the Veteran’s petition to reopen his claim for service connection for hypertension is denied. REASONS FOR REMAND Hepatitis C The evidence indicates the Veteran’s hepatitis C symptoms have increased in severity since the Veteran was last examined by VA in September 2015. A May 2016 private treatment record indicates the Veteran had acute-on-chronic anemia secondary to hemolysis due to Ribavirin, acute kidney injury. The record noted the Veteran’s hepatitis C was being treated with Harvoni and Ribavirin. An April 2017 VA treatment record noted the Veteran had a 12 week treatment for hepatitis C in April 2016. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of hepatitis C. The April 2017 VA treatment record indicates the Veteran’s hepatitis C is treated by Dr. S.M. at Mid Atlantic G.I. Consultants. Records from Dr. S.M. through April 2016 have been added to the claims file. However, the VA treatment record indicates that there may be more recent relevant outstanding private treatment records. A remand is required to allow VA to obtain authorization and request these records. 38 U.S.C. § 1151 Claim In the July 2015 remand, the Board requested that the Veteran be afforded a VA examination in order to determine whether the medical and surgical treatment received by the Veteran at the Philadelphia VA medical facility on September 28, 2010, involved carelessness, negligence, lack of proper skill, error in judgment , or similar instance of fault on the part of VA medical providers; or was an event not reasonably foreseeable, and resulted in additional disability, particularly to the nerves of both legs. The Veteran was afforded a VA examination in September 2015. The VA examiner stated that the question of whether the Veteran had a condition that was more likely than not a result of the surgery would be better answered by a urologist who is famliar with this type of prostate surgery. The VA examiner noted that he was not familiar with complications involving innervation to the anterior/posterior legs as a result of prostate surgery. The VA examiner stated that there was sufficient evidence that the issue with his thigh was just as likely as not a result of the surgery, but specifically stated “BUT please have a urologist review.” In an August 2016 addendum opinion, a VA neurologist stated “there is no disability of nerve leg pain that was caused by or became worse as a result of the medical and surgical treatment received by the Veteran at the Philadelphia VA medical facility on September 28, 2010.” The neurologist stated that the Veteran’s complaints of leg tingling resolved over the ensuing months, and by mid 2011, complaints of leg tingling/discomfort disappeared from the Veteran’s progress notes. However, the September 2015 VA examination report indicated the Veteran had neuropathic pain in the legs, and the examination showed mild intermittent pain, paresthesias and/or dysesthesias and numbness in the right and left lower extremities. Therefore, it is unclear whether the Veteran has an additional neurological disability caused by the surgical treatment. Additionally, the September 2015 VA examiner specicially recommended a urologist provide an opinion, but an opinion from a neurologist was obtained. The Board also notes that the opinion did not address whether the disability was reasonably foreseeable. As the opinions of record are inadequate, there has not been substantial compliance with the remand order, and the claim must be remanded for a new opinion. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Acquired psychiatric disorder, other than PTSD, and TDIU Finally, because a decision on the issues of entitlement to an increased initial rating for hepatitis C and entitlement to compensation under 38 U.S.C. § 1151 could significantly impact a decision on the issues of entitlement to service connection for an acquired psychiatric disorder other than PTSD and entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claims for entitlement to service connection for an acquired psychiatric disorder other than PTSD and entitlement to a TDIU is required. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for relevant private treatment records, including records from Dr. S.M. at Mid Atlantic GI Consultants. Make two requests for the authorized records from Dr. S.M. and any other identified provider, unless it is clear after the first request that a second request would be futile. 2. Obtain and associate with the claims file VA treatment records from July 2017 to the present. 3. After all records and/or responses received are associated with the claims file, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hepatitis C. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 4. After all records and/or responses received are associated with the claims file, obtain an opinion from a urologist, and, if deemed necessary, any other appropriate clinician, addressing whether the Veteran has an additional disability, to include a neurological disability of the bilateral lower extremities, caused by the September 28, 2010 VA medical and surgical treatment. If the examiner determines that an examination of the Veteran is needed, then such should be scheduled. The examiner should review the claims file and specifically address the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran has an “additional disability” caused by the September 2010 surgery? If so, the additional disabilities should be clearly identified including any neurological disabilities of the bilateral lower extremities. The term “additional disability” means any condition that did not exist immediately before the Veteran’s September 2010 surgery. The clinician must compare the Veteran’s condition immediately before and after the September 2010 VA surgery. If there is no “additional disability,” then the clinician does not need to provide answers to (b) and (c) but must explain why the symptoms the claimant contends constitute “additional disabilities” are not additional disability caused by the September 2010 VA treatment furnished to the Veteran. (b) If the Veteran has an additional disability caused by the September 2010 VA surgery, then is it at least as likely as not that the proximate cause of such disability or disabilities is carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA? In determining whether the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing surgical treatment, discuss if VA failed to exercise the degree of care that is expected of a reasonable health care provider. (c) If the Veteran has an additional disability caused by the September 2010 VA surgery, then is it at least as likely as not that this additional disability was reasonably foreseeable as an ordinary risk of the treatment that would be disclosed in connection with the informed consent (primary health care provider explains the reasonably foreseeable risks associated with VA treatment or services furnished the Veteran)? The examiner must provide a complete rationale for any opinion expressed. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Marenna, Counsel