Citation Nr: 21000249 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 16-53 748 DATE: January 4, 2021 ORDER New and material evidence has been received and the matter of entitlement to service connection for hypertension (previously claimed as high blood pressure) is reopened. REMANDED Entitlement to service connection for pseudofolliculitis barbae (claimed as a shaving profile) is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to a compensable disability rating for bilateral hearing loss is remanded. Entitlement to service connection for hypertension (previously claimed as high blood pressure) is remanded. FINDING OF FACT The April 2001 rating decision denying service connection for hypertension is final. Testimonial evidence received subsequently is neither cumulative nor redundant of the evidence at the time of the April 2001 rating decision and, assuming its credibility, raises a reasonable probability of substantiating the claim. CONCLUSION OF LAW The April 2001 rating decisions denying service connection for hypertension, claimed as high blood pressure, is final and the evidence received subsequently is new and material to reopen the claim for service connection. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (1), 3.303, 20.1105. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1998 to February 2001. These matters come before the Board of Veterans’ Appeals (Board) on appeal from November 2015 and February 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified at a July 2019 Board hearing before a Veteran’s Law Judge (VLJ) who subsequently left the Board. Further, the transcript of that hearing was incomplete. As such, the Veteran was afforded an opportunity for another Board hearing and he testified before the undersigned VL) at a September 2020 virtual Board hearing. A copy of that transcript has been associated with the claims file. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See, Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See, Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Whether new and material evidence has been received to reopen the matter of service connection for hypertension (previously claimed as high blood pressure). The Veteran contends that he is entitled to service connection for hypertension. By way of procedural history, service connection for high blood pressure was denied on the merits in an unappealed April 2001 rating decision. In a February 2016 rating decision, the RO declined to reopen the matter of entitlement to service connection for hypertension, previously claimed as high blood pressure. Regardless of the RO's actions, the Board has jurisdictional responsibility to determine whether a previously denied claim is properly reopened. See, Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)). See also, Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the issue before proceeding to adjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been provided, that is where the analysis must end. Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. §§ 7105 (c), (d)(3); 38 C.F.R. § 20.1103. A previously denied claim may be reopened by the submission of new and material evidence. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as 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 Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Moreover, the Court of Appeals for Veterans Claims ("Court") explained this standard is intended to be a low threshold. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Subsequent to the April 2001 rating decision, the Veteran testified at the September 2020 Board hearing that he was diagnosed with high blood pressure while in the service and has been treated for it since 2006 when he obtained insurance and was given medicine by his primary care physician. He further stated that while in the service he tried treating it by himself through a low sodium diet and monitoring, and that he still continues this self-management to this day. The Board finds that the testimonial evidence regarding his diagnosis and self-treatment of hypertension was not submitted to VA prior to the Apri 2001 rating decision and that, assuming its credibility for purposes of deciding whether to reopen the claim, this evidence addresses a requirement of service connection that was previously denied; evidence of a current disability. Therefore, this evidence is “new” and “material” and the Veteran’s claim for service connection for hypertension is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS FOR REMAND 1. Entitlement to service connection for pseudofolliculitis barbae (claimed as a shaving profile) is remanded. Here, the Board has recharacterized the claim for a skin condition to one for pseudofolliculitis barbae. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). As the Veteran has presented current evidence of pseudofolliculitis barbae, and the record indicates the Veteran experienced this issue while on active duty, the Board remands this matter for a VA examination. See, McClendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for an acquired psychiatric disorder is remanded. As to the claim for service connection for an acquired psychiatric disorder, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) clarified how the Board should analyze claims, specifically to include those for an acquired psychiatric disorder. Here, the Veteran applied for service connection for “any mental condition”, to include as secondary to his tinnitus. Subsequently, numerous VA and private treatment records have provided various diagnoses, including PTSD, anxiety depression and adjustment disorder. As such, the Board has recharacterized this claim to one for an acquired psychiatric disorder, as noted on the first page of this decision. Furthermore, the Board notes that the record is incomplete in that the Veteran’s complete service personnel records have not been obtained. Based on this, and the numerous and somewhat conflicting mental health diagnoses, the Board remands this matter to attempt to obtain the Veteran’s service treatment records and to provide him a VA examination to determine the nature and etiology of his mental health condition(s). 3. Entitlement to a compensable disability rating for bilateral hearing loss is remanded. The Veteran testified at the September 2020 that he has difficulty comprehending what people say, having to turn the television up louder to hear it and talking over people to compensate for his hearing loss. He then stated that he is a firefighter and that he has to be able to listen when there is a fire. The Veteran's wife testified that at first, she thought he was ignoring her, but then noticed how he would turn the television up louder but would not realize how loud it was, describing it as "extremely loud." She then asserted that his hearing "is getting progressively worse." As an assertion of worsening of the Veteran’s hearing has been made, the Baord remands this matter for a VA examination to determine the current severity and manifestations of his bilateral hearing loss. 4. Entitlement to service connection for hypertension (claimed as high blood pressure) is remanded. Here, as the Veteran has a current diagnosis of hypertension, and given the occurrence of elevated blood pressure readings while in service, the Board finds that a remand for a VA examination is required. McClendon. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from April 2001 to the Present. 2. Obtain the Veteran’s complete service personnel records. Pseudofolliculitis Barbae 3. Schedule the Veteran for a VA examination for his pseudofolliculitis barbae. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s pseudofolliculitis at least as likely as not related to service? The examiner’s attention is invited to the February 25, 1999 service treatment record which notes the Veteran was given a 30-day shaving profile for multiple papules diagnosed as pseudo folliculitis barbae. The examiner’s attention is invited to the March 29, 1999 individual sick slip which notes the Veteran was diagnosed with pseudo folliculitis barbae and was instructed to shave every other day using clippers for 30 days. Provide a rationale to support the opinion. The examiner must address the Veteran’s testimony at the September 2020 Board hearing that while in the military he was diagnosed with pseudo folliculitis barbae and still has the condition. He elaborated that while in the service he was forced to shave every day until he was given a permanent shaving profile. He then stated that he was treated with a cream before being given the profile. He further stated that when he came into the military that he "didn't have any facial hair" and was "kind of stumped when they actually told [him] that [he] had to shave." In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? Acquired Psych 4. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If the Veteran is diagnosed with a personality disorder and PTSD - The examiner must opine whether the PTSD was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. Hearing Loss 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss. 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. Hypertension 6. Schedule the Veteran for a VA examination for his hypertension. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s hypertension at least as likely as not related to service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 7. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran and his representative a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brian P. Keeley 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.