Citation Nr: 18160540
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 17-10 147
DATE:	December 27, 2018
ORDER
The appeal to reopen a service connection claim for posttraumatic stress disorder (PTSD) is granted.
Entitlement to service connection for hypertension is denied.
Entitlement to service connection for a headache disability is denied.
REMANDED
Entitlement to service connection for PTSD is remanded.
FINDINGS OF FACT
1. An unappealed December 2003 rating decision denied reopening a service connection claim for PTSD.
2. Evidence added to the record since the December 2003 rating decision raises a reasonable possibility of substantiating the previously denied claim for entitlement to service connection for PTSD.
3. Hypertension was not manifest during active service nor within one year of service; and, the preponderance of the evidence fails to establish that it is etiologically related to service.
4. A headache disability was not manifest during active service nor within one year of service; and, the preponderance of the evidence fails to establish that it is etiologically related to service.
CONCLUSIONS OF LAW
1. The December 2003 rating decision that denied reopening a service connection claim for PTSD is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018).
2. New and material evidence was received, and the service connection claim for PTSD is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018).
3. The criteria for entitlement to service connection for hypertension have not been met.  38 U.S.C. §§ 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a) (2018).
4. The criteria for entitlement to service connection for a headache disability have not been met.  38 U.S.C. §§ 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a) (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The appellant is a Veteran who served on active duty from April 1981 to March 1983.  
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions in August 2013 and February 2015 by or on behalf of the New Orleans, Louisiana, Regional Office (RO) of the Department of Veterans Affairs (VA).  

New and material evidence claim
VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence.  New evidence means existing evidence not previously submitted to agency decisionmakers.  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 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). 
The United States Court of Appeals for Veterans Claims (hereinafter “the Court”) has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board.  Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000).  
When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Shade v. Shinseki, 24 Vet. App. 110 (2010).  
A December 2003 rating decision denied reopening the Veteran’s service connection claim for PTSD.  The basis of the denial was the absence of evidence demonstrating PTSD as a result of active service, including specific evidence as to an in-service stressor.  The Veteran did not appeal and new and material evidence was not added to the file within a year of that decision.  Accordingly, the decision became final.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018).  
The evidence added to the record since the rating decision includes additional information as to the matter.  In statements provided in support of her claim the Veteran reiterated her claim as to personal assaults during active service and in May 2018 provided additional, specific information as to an assault in March 1982.  VA and private treatment records also include diagnoses and treatment for PTSD and various other psychiatric disorders with additional information and comments concerning etiology.  This evidence was not previously considered and it raises a reasonable possibility of substantiating the claim.  The previously denied claim as to the matter is reopened.
Service Connection
Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1131 (2012).  Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 C.F.R. § 3.303(a) (2018).  The term “disability” for VA compensation purposes refers to the functional impairment of earning capacity rather than the underlying cause of the impairment and it is noted that pain alone may be a functional impairment.  See Saunders v. Wilkie, 887 F.3d 1356, 1364-68 (Fed. Cir. 2018).  
Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004).  
Certain chronic diseases, including cardiovascular diseases and organic diseases of the nervous system, are also subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C. §§ 1112, 1113 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2018).
Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a).  Hypertension and headaches, to the extent manifested due to an organic disease of the nervous system, are qualifying chronic diseases.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  As a result, service connection via the demonstration of continuity of symptomatology is applicable.
For VA purposes, “hypertension” means that the diastolic blood pressure is predominantly 90 millimeters (mm.) or greater, and “isolated systolic hypertension” means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm.  38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2018).  There are two main types of high blood pressure: primary and secondary high blood pressure: Primary, or essential, high blood pressure that is the most common type of high blood pressure and for most people who get this kind of blood pressure, it develops over time as you get older; and secondary high blood pressure that is caused by another medical condition or use of certain medicines.  See https://medlineplus.gov/highbloodpressure.html (Dec. 7, 2018).
Even though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection.  Stefl v. Nicholson, 21 Vet. App. 120 (2007).  When a claimed disability is not included as a presumptive disability, direct service connection may nevertheless be established by evidence demonstrating that the disability was in fact incurred during service.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).
The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence.  Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997).  VA may favor one medical opinion over another, provided an adequate basis is provided.  Owens v. Brown, 7 Vet. App. 429 (1995).
It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant.  38 C.F.R. § 3.102 (2018).
1. Entitlement to service connection for hypertension.
2. Entitlement to service connection for a headache disability.
The Veteran claims she has hypertension and a headache disability as a result of active service.  She has not, however, provided any specific information as to the basis for her claims.  Nor has she identified any pertinent treatment during or within one year of service or reported any symptoms as having been present in service which continued after service.  
The Board notes that the Veteran’s service treatment records, other than her enlistment examination reports, are unavailable and that she was appropriately notified of this matter and of her responsibility to provide additional information in support of her claims.  No additional information as to these matters was provided.  VA and private medical records show she complained of headaches and was treated for hypertension many years after service.  
Based upon the evidence of record, the Board finds hypertension and a headache disability were not manifest during active service.  There is also no evidence that they were manifest within one year of the Veteran’s discharge from service nor that any such present disorder is etiologically related to service.  Although the Veteran’s claims may be construed as contentions that her hypertension and headaches began in service, she has provided no evidence, lay or objective, to support her claim. Merely expressing a belief that a disability had its onset in service or is related to service is not sufficient.  The Board further finds that there is no indication that any present disabilities may be reasonably attributed to any specific event, injury, or disease during active service.  Therefore, an examination is not required.  See Bardwell v. Shinseki, 24 Vet. App. 36 (2010).

When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied.  Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).  The preponderance of the evidence in this case is against the Veteran’s claims.
REASONS FOR REMAND
1. Entitlement to service connection for PTSD is remanded.
The Veteran contends that she has an acquired psychiatric disorder, to include PTSD, as a result of active service.  She has reported having experienced various personal assaults during service.  There is no indication, however, that she was adequately notified that other evidentiary sources might assist her in substantiating such claims.  Such notice is required.  See 38 C.F.R. § 3.304(f)(5) (2018).  The Board finds that additional development is required for an adequate determination of the issue on appeal.
The matter is REMANDED for the following action:
1. Send the Veteran notice required for PTSD claims based on personal assaults, and allow time for a response.  Then, attempt to corroborate the Veteran’s in-service stressor based on personal assault.  If more details are needed, contact the Veteran to request the information.
2. Schedule the Veteran for a VA PTSD examination for an opinion that addresses the following: 
a.	Identify/diagnose any acquired psychiatric disorder that presently exists or that has existed during the appeal period.  A specific finding should be made as to whether the Veteran has a diagnosis of PTSD under the DSM-IV or V.  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 an in-service stressor.  The stressor(s) must be identified.  If the evidence does not support a PTSD diagnosis, a detailed explanation should be provided, which included reconciling that finding with those records and reports that list PTSD as a diagnosis.  

b.	For each diagnosed psychiatric disability, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that had its onset in service.

c.	For each diagnosed psychiatric disability, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that had it is etiologically related to his active service, to include as a result of credible evidence of a personal assault.  The examiner must address whether any evidence of behavior change indicates that a personal assault occurred.

All necessary tests and studies should be conducted.  A complete rationale for any opinion given must be provided.

Rationale for the requested opinion shall be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, provide an explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the limits of current medical knowledge with respect to the question.

 
MICHAEL A. HERMAN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. Douglas, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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