Citation Nr: 20022440 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 17-18 065 DATE: March 31, 2020 ORDER New and material evidence has been received and the claim of service connection for hypertension is reopened. New and material evidence has been received and the claim of service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD), is reopened. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for an acquired psychiatric disorder including PTSD is remanded. Entitlement to service connection for a cardiac disability including ischemic heart disease is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for a sleep disorder causing insomnia is remanded. FINDINGS OF FACT 1. In a February 1989 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for hypertension and a chronic acquired psychiatric disability; the Veteran did not appeal the decision and new and material evidence was not received within the one-year appeal period. 2. Evidence associated with the record since the February 1989 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for hypertension. 3. In an August 2008 rating decision, a VA RO denied service connection for PTSD; the Veteran did not appeal the decision and new and material evidence was not received within the one-year appeal period. 4. Evidence associated with the record since the February 1989 and August 2008 decisions relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim seeking service connection for hypertension is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 2. New and material evidence has been received and the claim seeking service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1968 to November 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a May 2014 rating decision by the VA RO. In November 2019, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. The Veteran filed an October 2019 notice of disagreement to a September 2019 rating decision seeking Board review of the denial of claims related to hepatitis C and sleep apnea. That appeal has been docketed at the Board and is awaiting scheduling of the hearing requested by the Veteran. Claims to Reopen If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. 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(a). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 1. Hypertension The RO denied the Veteran’s claim of service connection for hypertension in a February 1989 rating decision, finding that hypertension was not currently shown. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.104, 19.129, 19.192 (1988). The evidence received since the February 1989 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, a February 1998 medical note shows a diagnosis of hypertension and subsequent medical records demonstrate he has been continuously treated up to the present. This new evidence addresses the reason for the previous denial; that is, a current disability, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. 2. Psychiatric Disorder The RO denied the Veteran’s claim of service connection for a chronic acquired psychiatric disability in a February 1989 rating decision, finding that a mental health disability such as a nervous condition was not shown as a current diagnosed disability. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.104, 19.129, 19.192 (1988). The RO denied the Veteran’s claim of service connection for PTSD in a March 2008 rating decision, finding that PTSD was not shown during service or at the time of the rating decision. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2008). The evidence received since the February 1989 and March 2008 rating decisions includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, in October 2018, a VA social worker determined the Veteran met the criteria for a diagnosis of PTSD based upon service stressors. Other medical records show additional psychological disorders such as depression disorder, anxiety disorder, mood disorder. This new evidence addresses the reason for the previous denial; that is, a current mental health disability and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. REASONS FOR REMAND Records development is required. The Veteran testified that he sought treatment at the VA facility in San Jose, California, including an admission for anxiety attacks. This occurred in the early 1980s. He also testified he was hospitalized at the Tuscaloosa, Alabama VA facility in the middle of the 1980s. According to the Veteran, he first sought treatment in 1974 although it is not clear from his testimony where this occurred. He is currently receiving treatment at the Birmingham, Alabama VA facility. The Board notes there are early VA treatment records in the file, including treatment dating back to 1971. However, it is not clear whether the records are from the Birmingham VA only or also include records from the Tuscaloosa VA. Nothing in the file demonstrates any request was made to the San Jose VA for treatment records. Remand is required for all claims to ensure all relevant records are obtained. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Ongoing VA treatment records should also be obtained. The Veteran testified he was hospitalized at Fort Belvoir in service but has been told the records no longer available. As this appeal is being remanded, attempts should be made to determine if these records are available. 1. Hypertension. No medical opinion has been obtained regarding this issue. A medical opinion should be obtained regarding whether the Veteran’s current hypertension is related to his military service, to include exposure to herbicide agents. 2. Psychiatric Disorder. As noted above, the Veteran has been diagnosed with multiple psychiatric disorders, including PTSD. While PTSD was diagnosed in 2018 related to claimed in-service events, this diagnosis was made by a VA social worker and not a psychologist or psychiatrist. As such, service connection cannot be awarded at this time under 38 C.F.R. § 3.304(f)(3). A VA examination by a psychologist or psychiatrist is necessary to determine if the Veteran has PTSD or any other psychiatric disorder related to his military service. The matters are REMANDED for the following action: 1. Request from the appropriate custodian any in-patient records for the Veteran for admission to the Fort Belvoir Hospital while he was in service. If the records do not exist or further efforts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). Ask the Veteran to identify all outstanding treatment records relevant to his claims. All identified VA records, to include records from the VA facilities in San Jose and Tuscaloosa should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA examination with a psychologist or psychiatrist. The examiner is asked to list all current psychiatric disorders. If PTSD is diagnosed, the psychologist or psychiatrist should list the traumatic events contributing to that diagnosis, to include if the traumatic event is the fear of hostile military or terrorist activity. For all other diagnosed psychiatric disorders, the psychologist or psychiatrist is asked to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the psychiatric disorder had its onset during service or is otherwise related to an in-service injury, event, or disease. In offering the opinion, the examiner is asked to discuss whether the Veteran’s insomnia is a symptom of a diagnosed mental health disability or separate and apart from any diagnosed mental health disability or sleep apnea. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as the Board is precluded from making any medical findings. 3. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current hypertension onset during service or is otherwise related to an in-service injury, event, or disease, to include exposure to herbicide agents. The Board recognizes hypertension is not presumed by VA to be related to herbicide agent exposure, but seeks an opinion as to whether this specific Veteran developed hypertension as a result of his personal exposure to herbicide agents. The examiner should also address whether the current hypertension is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) any psychiatric disorder. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as the Board is precluded from making any medical findings. 4. Complete any other development that arises as a result of the above. For example, if service connection for an acquired psychiatric disorder is granted a medical opinion may be necessary to determine if the Veteran has erectile dysfunction as a result of medication taken for that condition. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell P. Veldenz, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.