Citation Nr: 0003920 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 97-32 762 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for hypertension. 2. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a nervous condition. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Fogarty, Associate Counsel INTRODUCTION The veteran served on active duty from July 1972 to September 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 1997 rating decision from the Department of Veterans Affairs (VA) Waco, Texas Regional Office (RO), which determined that new and material evidence had not been presented to reopen a claim of entitlement to service connection for hypertension and a claim of entitlement to service connection for a nervous condition. FINDINGS OF FACT 1. In an unappealed August 1992 rating decision, the RO determined that new and material evidence had not been presented to reopen a claim of entitlement to service connection for hypertension and a claim of entitlement to service connection for a nervous condition. 2. Additional evidence regarding the claim of entitlement to service connection for hypertension submitted since the RO's August 1992 decision is new, bears directly and substantially upon the specific matter under consideration, and is so significant that it must be considered in order to fairly decide the merits of the claim. 3. Hypertension may not be disassociated from in-service observations of high blood pressure. 4. Additional evidence regarding the claim of entitlement to service connection for a nervous condition submitted since the RO's August 1992 decision does not bear directly and substantially upon the specific matter under consideration and is not so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. Evidence presented since the RO's August 1992 rating decision in regard to the claim of entitlement to service connection for hypertension is new and material; the claim is reopened. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1999). 2. Hypertension was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1999). 3. Evidence presented since the RO's August 1992 rating decision in regard to the claim of entitlement to service connection for a nervous condition is not new and material; the decision as to that claim is final and the claim is not reopened. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The veteran's service medical records reflect that upon induction examination dated in October 1971, his systolic blood pressure was noted as 130 and his diastolic pressure was noted as 86. A medical board report showing two weeks of active service notes that the veteran suffered from hypertension, probably essential. It was also noted that it existed prior to service. An August 1972 clinical record notes that the veteran had a four-year history of hypertension that was initially treated with medication. It was noted that this condition was not aggravated by service. Upon medical board examination dated in August 1972, high blood pressure was noted. The veteran's systolic pressure was noted as 169 and his diastolic pressure was noted as 106. An August 1972 clinical record notes that the veteran's blood pressure was well documented to be high and that his mother had high blood pressure also. Blood pressure was noted as 150 systolic and 104 diastolic. It was also noted that the veteran had suffered from headaches for years. In a December 1972 rating decision, the RO denied entitlement to service connection for hypertension on the grounds that it preexisted his service and was not aggravated thereby. The RO also denied entitlement to service connection for a nervous condition on the grounds that it was not shown by the evidence of record. A private medical report dated in November 1976 reflects that the veteran was seen for nervousness in September 1972. It was noted that the veteran was on the verge of a nervous breakdown at that time and needed emotional help. In an August 1992 confirmed rating decision, the RO determined that new and material evidence had not been presented to reopen a claim of entitlement to service connection for hypertension and a claim of entitlement to service connection for a nervous condition. The veteran filed a notice of disagreement in September 1993. In a November 1993 letter, the RO informed the veteran that his notice of disagreement was not accepted because it was not timely. The veteran did not appeal that determination. VA clinical records dated from July 1996 to July 1997 reflect relevant impressions of hypertension and depression. Private medical records dated from 1967 to 1980 were received by the RO in December 1997. These records reflect the veteran was treated in 1967 for a left-sided headache. An October 14, 1972 entry reflects a systolic blood pressure of 136 and a diastolic pressure of 96. An October 27, 1972 entry reflects a systolic blood pressure of 135 and a diastolic pressure of 86. It was noted that the veteran had been very nervous. In July 1973, the veteran's systolic blood pressure was noted as 150 and his diastolic pressure was 90. Hypertension and depression were further noted in a May 1974 clinical record. The veteran's systolic blood pressure was noted as 140 and diastolic pressure was noted as 77. At his February 1998 RO hearing, the veteran testified that he did not know he had high blood pressure until he was in basic training. (Transcript, page 2). The veteran also stated that he did not know why a four-year history of high blood pressure was noted in his service medical records. (Transcript, page 2). The veteran reported that he had been on blood pressure medication since his discharge from service. (Transcript, page 3). The veteran also reported seeing a physician for his nervous condition after his discharge from service. (Transcript, pages 4-5). The veteran testified that he did not have problems with his nerves prior to his military service. (Transcript, page 5). The veteran also reported being treated with Valium by his private physician after his discharge from service. VA outpatient treatment records dated from September 1981 to October 1995 were received by the RO in July 1998. These records reflect treatment for hypertension. Some anxiety was also noted. Additional VA outpatient treatment records dated from October 1984 to November 1991 were also received by the RO in July 1998. These records show further treatment for hypertension and assessments of an anxiety disorder with depression. It was noted that the veteran might have possible somatization features. Panic attacks were also noted. Pertinent Law and Regulations Following notification of an initial review and determination by the RO of a veteran's claim, a notice of disagreement must be filed within one year from the date of mailing of notification, followed by a timely substantive appeal submitted either within 60 days of the issuance of a statement of the case or within the remainder of the one-year period of mailing of the notice of the adverse determination; otherwise, the determination becomes final and is not subject to revision absent new and material evidence. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104(a) (1999). If new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. In determining whether to reopen previously and finally denied claims, a three-step analysis was recently announced by the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court"). Elkins v. West, 12 Vet. App. 209 (1999). Under the Elkins test, the Board must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally decided claim reopened under 38 U.S.C.A. § 5108. Second, if new and material evidence has been presented, immediately upon reopening the claim, 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). Third, if the claim is well grounded, the Board may then proceed to evaluate the merits of the claim but only after ensuring that VA's duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. Winters v. West, 12 Vet. App. 203 (1999). Once a denial of a claim of service connection has become final, it cannot subsequently be reopened unless new and material evidence has been presented. 38 U.S.C.A. § 5108. New and material evidence means (1) evidence not previously submitted; (2) which bears directly and substantially upon the specific matter under consideration; (3) which is neither cumulative nor redundant; and (4) which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). For the limited purpose of determining whether to reopen a claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Court has clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim. Evans v. Brown, 9 Vet. App. 273, 284 (1996) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996)(table)). Rather, it is the specified bases for the final disallowance that must be considered in determining whether the newly submitted evidence is probative. Evans, at 284. The Court also held that in order to reopen a previously and finally disallowed claim there must be new and material evidence submitted "since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits." Evans v. Brown at 284. The Board recognizes that the Court, in Graves v. Brown, 9 Vet. App. 172 (1996), extended the 38 U.S.C.A. § 5103(a) (West 1991) duty to advise the claimant of evidence needed to complete his application, as discussed in Robinette v. Brown, 8 Vet. App. 69 (1995), to applications to reopen a claim through the presentation of new and material evidence. In this instance, VA has fulfilled such duty in the course of requests for information from the veteran and other sources, and has advised the veteran of the status of his claim in the statement of the case and supplemental statement of the case. As modified by Epps v. Brown, 9 Vet. App. 341, 344 (1996), that duty arises where the veteran has reported the existence of evidence which could serve to re-open a claim. As no such evidence has been identified in the instant case, VA has satisfied its duty to inform the veteran under 38 U.S.C.A. § 5103(a). See Slater v. Brown, 9 Vet. App. 240, 244 (1996). Analysis I. Hypertension Claim The claim of entitlement to service connection for hypertension was denied in an August 1992 rating decision. The veteran did not file a timely notice of disagreement to that determination, thus the decision became final. Numerous VA and private treatment records have been received since the RO's August 1992 final rating decision. These records reveal treatment for hypertension subsequent to the veteran's military service. The private treatment records also reflect treatment prior to military service. The Board is of the opinion that this evidence is not wholly cumulative or redundant of the evidence previously submitted and is sufficiently significant to the issue in this case that it must be considered in order to fairly decide the merits of the veteran's claims. The additional evidence is therefore new and material and the claim of entitlement to service connection is reopened. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). A claim reopened after new and material evidence has been received must be considered on a de novo basis. See Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Basic entitlement to disability compensation may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 1991). Service connection connotes many factors but basically 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) (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic disabilities, such as hypertension, will be presumed to be related to service if manifested to a compensable degree within one year of discharge from service if the veteran had active service of at least 90 days. 38 U.S.C.A. §§ 1101, 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). In the alternative, service connection may be established by a continuity of symptomatology between a current disorder and service. 38 C.F.R. § 3.303(d); Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Lay observations of symptomatology are pertinent to the development of a claim of service connection if corroborated by medical evidence. See Rhodes v. Brown, 4 Vet. App. 124, 126-127 (1993). The threshold question that must be resolved with regard to each claim is whether the veteran has presented evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). A well-grounded claim is a plausible claim that is meritorious on its own or capable of substantiation. See Murphy, 1 Vet. App. at 81. An allegation of a disorder that is service-connected is not sufficient; the veteran must submit evidence in support of a claim that would "justify a belief by a fair and impartial individual that the claim is plausible." 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for a claim to be well grounded, there must be competent evidence of current disability; lay or medical evidence of incurrence or aggravation of a disease or injury in service; and competent medical evidence of a nexus between the in-service injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498 (1995). A claim based on chronicity may be well grounded if the chronic condition is observed during service, continuity of symptomatology is demonstrated thereafter and competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Lay assertions of medical causation cannot constitute evidence sufficient to render a claim well grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Additionally, a preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. §§ 1110, 1153 (West 1991); 38 C.F.R. §§ 3.303, 3.306 (1999). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). When all evidence is assembled, the Secretary is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Following a thorough review of the record, the Board is of the opinion that the evidence for and against the veteran's claim of entitlement to service connection for hypertension is in relative equipoise. The veteran's service medical records clearly establish that the veteran suffered from hypertension during service. Additionally, post-service treatment records show continued treatment since his discharge from service for hypertension with medication. Furthermore, a private medical record dated in July 1973, within one year of the veteran's discharge from service, showed a systolic pressure of 150 and a diastolic pressure of 90. The Board has considered whether the veteran's hypertension condition preexisted his entry into active service. The veteran's induction examination showed a blood pressure of 130/86, and no diagnosis of high blood pressure or a history of the same was noted. Additionally, the veteran's private treatment records dated from 1967 to 1980 are silent for treatment or diagnoses of high blood pressure until October 1972, immediately after the veteran's discharge from service. Thus, although the veteran's service medical records reflect handwritten notations of a four-year history of hypertension, those notations are not supported by the pre-service medical records or any other evidence of record. The Board notes that even if the veteran's hypertension did preexist his entry into service, his blood pressure clearly increased during service and clear and unmistakable evidence to rebut the presumption of aggravation has not been presented. The record is further silent for a specific finding that the increase in the veteran's blood pressure was due to the natural progress of the disease. Therefore, with all reasonable doubt resolved in the veteran's favor, the Board concludes that service connection for hypertension is warranted. II. Nervous Condition Claim The evidence presented in regard to a claim of entitlement to service connection for a nervous condition since the RO's final August 1992 final rating decision includes VA treatment records dated from September 1981 to July 1997, private medical records dated from1967 to 1980, and a transcript of the veteran's February 1998 RO hearing. The VA treatment records dated from September 1981 to July 1997 are new in that they were not previously of record. However, they do not bear directly and substantially upon the specific matter under consideration, the incurrence or aggravation of a nervous condition as a result of service. The treatment records reflect assessments of an anxiety disorder and depression. However, the records do not reflect a causal link between the veteran's nervous condition and any incident of service. Thus, the newly submitted evidence is not so significant that it must be considered in order to fairly decide the merits of the claim as it does not tend to show that a nervous condition was incurred or aggravated during service, or is otherwise attributable to service. See 38 C.F.R. § 3.156(a). The private medical records dated from 1967 to 1980 are new in that they were not previously of record. However, they do not bear directly and substantially upon the specific matter under consideration, the incurrence or aggravation of a nervous condition as a result of service. The records do reflect an October 1972 notation that the veteran had been nervous, but no diagnosis of a medical condition. The Board notes that the Court made it clear in Tirpak v. Derwinski, 2 Vet. App. 609 (1992) and Gabbard v. Derwinski, No. 90-1463, (U.S. Vet. App. Sept. 21, 1992), that medical evidence which merely indicates that an alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of the disorder claimed or the relationship thereto. See also LeShore v. Brown, 8 Vet. App. 406 (1995). The records also reflect a notation of depression in May 1974, but it was noted more than one year after the veteran's discharge from service. The records do not reflect a causal link between the veteran's nervous condition or depression and any incident of service. Thus, the newly submitted evidence is not so significant that it must be considered in order to fairly decide the merits of the claim as it does not tend to show that the veteran's nervous condition was incurred or aggravated during service, or is otherwise attributable to service. See 38 C.F.R. § 3.156(a). The veteran's February 1998 RO hearing testimony is cumulative of his prior contentions and is therefore not new and material. The Board notes that although the veteran is competent to describe his symptomatology, he is not competent to offer medical opinions regarding its etiology or whether it constitutes a disability within the meaning of the relevant regulation. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). ORDER New and material evidence having been submitted to reopen the claim of entitlement to service connection for hypertension, the claim is reopened. Service connection for hypertension is granted. New and material evidence not having been presented to reopen the claim of entitlement to service connection for a nervous condition, service connection remains denied. John E. Ormond, Jr. Member, Board of Veterans' Appeals