Citation Nr: 0006139 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 97-26 014 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether new and material evidence sufficient to reopen a claim for service connection for bilateral arthritis of the knees has been received. 2. Entitlement to service connection for hypertension, as secondary to service-connected post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Rashid El Malik WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. R. Gleeson, Associate Counsel INTRODUCTION The veteran served on active military duty from August 1968 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from two May 1997 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Los Angeles, California (RO) which denied the veteran's claims. The claims were previously remanded by the Board in a May 1999 opinion to afford the veteran an opportunity for a Travel Board hearing. A hearing was held in November 1999, during which the veteran withdrew the previously certified issue on appeal of service connection for peripheral neuropathy. In addition, the veteran stated that he no longer wished to pursue service connection for hypertension on a direct basis, but rather limited his appeal solely to the issue of entitlement to service connection for hypertension secondary to PTSD. During the hearing the veteran's representative indicated that there were additional issues of entitlement which the veteran wished to pursue, including the issue of an increased rating for PTSD. The veteran's representative further submitted a written correspondence in July 1999 setting forth the veteran's claim for an increased rating for PTSD. This matter is referred to the RO for appropriate action. The veteran's representative indicated during the Travel Board hearing that there were other issues that the veteran wished to pursue, however he was informed that he needs to raise these at the RO level as they have not yet been adjudicated. Finally, at the hearing the veteran's representative stated that the veteran would submit additional medical evidence. The record remained open for the receipt of such evidence for 30 days, however no such evidence has been received. FINDINGS OF FACT 1. By an unappealed decision dated in July 1994, the RO denied the veteran's claim for service connection for bilateral arthritis of the knees. 2. Subsequent to the RO's July 1994 decision, the veteran submitted evidence which bears directly but not substantially upon the specific matter under consideration, is neither cumulative nor redundant, but is not so significant that it must be considered to decide fairly the merits of the claim for service connection for bilateral arthritis of the knees. 3. There is competent medical evidence that the veteran's hypertension is secondary to his PTSD. CONCLUSIONS OF LAW 1. The RO's decision of July 1994 denying service connection for bilateral arthritis of the knees is final. 38 U.S.C.A. §§ 5108, 7105 (West 1991) and §§ 7103, 7104 (West 1991 & Supp. 1999); 38 C.F.R. § 20.1103 (1999). 2. The evidence received since the July 1994 RO decision is new but not material; thus, the requirements to reopen the claim of entitlement to service connection for bilateral arthritis of the knees have not been met. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 3. The claim for service connection for hypertension secondary to service-connected PTSD is well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Bilateral arthritis of the knees The veteran's original claim for service connection for arthritis of the knees was denied in July 1994. He filed a notice of disagreement (NOD), however he failed to file a substantive appeal within 60 days of the issuance of the RO's statement of the case, or within one year from the date of mailing of the RO's rating decision. The law provides that a NOD must be filed within one year from the date of mailing of notice of the result of an RO's determination in order to initiate an appeal of the determination. 38 U.S.C.A. § 7105(a), (b)(1) (West 1991); 38 C.F.R. § 20.302(a). After the timely filing of a NOD, the RO must issue a statement of the case to the veteran setting forth the issues on appeal and all pertinent evidence and laws. 38 U.S.C.A. § 7105(d)(1). Thereafter, the veteran has 60 days or until the expiration of the one-year period from the date of mailing of the RO's determination to file a formal appeal. 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § 20.302(b). If the veteran fails to file a formal appeal within the requisite time period, the Board has no jurisdiction over the appeal. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.202. As the veteran in this case did not file a substantive appeal within 60 days of the issuance of the statement of the case or within the one-year period after issuance of the RO's July 1994 determination, that determination is final. Id.; 38 C.F.R. §§ 20.302, 20.1103 (1999). Once an RO decision becomes final under 38 U.S.C.A. § 7105(a), absent the submission of new and material evidence, the claim may not thereafter be reopened or readjudicated by the VA. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Suttman v. Brown, 5 Vet. App. 127, 135 (1993). New evidence, submitted to reopen a claim, will be presumed credible solely for the purpose of determining whether the claim has been reopened. Winters v. West, 12 Vet. App. 203 (1999). On appellate review, the Board must consider all evidence submitted since the claim was finally disallowed. See Elkins v. West, 12 Vet. App. 209 (1999). New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself and in connection with evidence previously assembled is so significant that it must be considered to decide fairly the merits of the claim. 38 C.F.R. § 3.156(a). If the veteran has submitted new and material evidence under 38 C.F.R. § 3.156(a)(1999), the Board must determine whether, based upon all the evidence of record in support of the claim, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a). Winters, 12 Vet. App. at 206. If the claim is well grounded, the duty to assist must be fulfilled and then the claim is evaluated on the merits. Id. At the time of the RO's July 1994 decision, the evidence of record consisted of service medical records; private treatment records of Dr. Robinson; and VA Medical Center (VAMC) treatment records. Service medical records do not contain any record of complaints or treatment for knee problems. At the veteran's separation examination in June 1970, his lower extremities were noted to be normal. None of the VAMC or private treatment records in the claims file at the time of the July 1994 decision pertained to the veteran's knees. Subsequent to the veteran's July 1994 decision the following pertinent evidence has been associated with the claims file: VAMC treatment records dated from October 1992 to August 1997; August 1996 statement of Dr. Warren Yu; June 1997 statement of Dr. Bruce E. Fishman; and November 1999 Travel Board hearing transcript. Cumulatively, the clinical treatment records show that the veteran has been diagnosed with osteoarthritis of both knees. The August 1996 statement of Dr. Yu, an orthopedics physician at the VAMC states that the veteran is under his care for bilateral osteoarthritis of the knees and is treated conservatively, but will likely require eventual joint arthroplasty in the future. The June 1997 statement of Dr. Fishman, a private physician, states that the veteran will eventually require total knee replacement surgery bilaterally. It further states that by history, the etiology of the veteran's severe osteoarthritis appears to be a combination of trauma sustained in the military and long standing civilian industrial/vocational work requirements. The veteran testified that during basic training he injured his knees but did not go on sick call because it was discouraged by the drill instructors and because he did not want to be thought of as a sissy. Activities such as crawling during training and in Vietnam caused pain to his knees. He stated that he was first told in about 1973 that he had arthritis in the knees, but he did not recall the doctor's name. In order to be new and material, the evidence submitted must bear on the issue of whether there is a nexus between the veteran's current arthritis of the knees and his period of active service. The new evidence includes the veteran's testimony that his knee condition begain in service and his explanation as to why he did not seek treatment at that time. However, the veteran, as a layperson, is not competent to testify as to the etiology of his medical condition. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (holding that lay persons are not competent to offer medical opinions). The new evidence shows a diagnosis of osteoarthritis in the 1990's. It also includes the statement of Dr. Fishman to the effect that based on the history, presumably provided by the veteran, the etiology of the veteran's arthritis appears to be a combination of activities in the military and post- service vocational activities. This statement is not sufficient to well ground the veteran's claim and therefore does not constitute new and material evidence. Because this evidence consists of an opinion that rests exclusively on the self-reported history from the veteran, it does not constitute competent medical evidence of a nexus. A bare transcription of lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional. LeShore v. Brown, 8 Vet. App. 406 (1995). Dr. Fishman has no personal knowledge of the activities undergone by the veteran in service and his statement is mere speculation that the veteran's osteoarthritis is likely to have been caused by in- service and post-service employment activities, as related by the veteran. Because it is merely speculative, Dr. Fishman's statement does not bear substantially on the question of whether there is a nexus between the veteran's arthritis of the knees and service, and does not constitute new and material evidence. Hypertension The veteran contends that his hypertension stems from his service-connected PTSD. Service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. When service connection is established for a secondary condition, the secondary condition is considered as part of the original condition. 38 C.F.R. § 3.310(a). A claim for secondary service connection, like all claims, must be well grounded. Reiber v. Brown, 7 Vet. App. 513, 516 (1995). The claims file contains three medical opinions that bear on this issue. The September 1996 opinion of Dr. Leonard Kleinman, a VA physician, states that serious consideration should be given to the possibility that the veteran's hypertension is service-connection and possibly related to his PTSD. The May 1997 opinion of Dr. Ali Aziz, a VA psychiatrist, essentially concurs with the opinion of Dr. Kleinman. Finally, the private medical opinion of Dr. Alfonzo Stakley, dated in June 1997, states that when the veteran becomes agitated his blood pressure rises and that the bad experiences the veteran had in service continue to be a mental torment. The opinion concludes that it is with medical certainty that the veteran's hypertension is in part directly related to his military experiences and should be considered as service-related. The RO considered these opinions, but rejected the notion that the veteran's hypertension arose from his PTSD. The RO cited an opinion of Dr. P. Steele to the effect that there is no medical literature establishing a relationship between stress and the subsequent onset of hypertension. However, this opinion is not of record, and it does not appear to apply in particular to the veteran's case. The Board concludes that the opinions of Drs. Kleinman, Aziz and Stakley are sufficient to well ground the claim for service connection for hypertension secondary to PTSD. However, the Board further finds that additional information, as discussed in the remand portion of this opinion below, is necessary to determine whether the veteran is entitled to service connection. ORDER Service connection for bilateral arthritis of the knees is denied. The claim for service connection for hypertension secondary to PTSD is well grounded. REMAND As discussed above, there are three medical opinions of record indicating a possible linkage between the veteran's hypertension and his service-connected PTSD. The Board has also noted that the claims file is missing the opinion of Dr. Steele relied upon in the RO's May 1997 rating decision in which hypertension secondary to PTSD was denied. In light of the foregoing, this claim is remanded for the following further development: 1. The RO should obtain a copy of the opinion of P. Steele, M.D., M.P.H., Acting Director Medical Service, VHA Cardiovascular Disease Service, dated August 14, 1995, and should associate the same with the claims file. 2. After completion of the above, the veteran should be scheduled for a VA examination with a cardiovascular specialist. Prior to the examination, the examiner should review the claims file, including those documents pertaining to the veteran's service- connected PTSD. The examiner should conduct a thorough cardiovascular examination, including all necessary tests and studies. Thereafter, the examiner should submit his/her findings in a typewritten report. The examiner is asked to respond to the following: Is it as least as likely as not that the veteran's hypertension is proximately due (in whole or part) to his service- connected PTSD. In replying to this question, the examiner is asked to set forth the medical bases for his/her conclusion. 3. After completion of the above development, the RO should readjudicate the veteran's claim for hypertension secondary to PTSD. If the decision remains adverse, both the veteran and his representative should be furnished a supplemental statement of the case and should be afforded an appropriate period of time in which to respond thereto. The purpose of this REMAND is to obtain additional information, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). BRUCE KANNEE Member, Board of Veterans' Appeals