Citation Nr: 0000542 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 98-10 648 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent for schizophrenic reaction, chronic, undifferentiated type. 2. Whether new and material evidence has been submitted to reopen claim of service connection for hypertension. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Robinson, Associate Counsel INTRODUCTION The veteran had active service from October 1963 to August 1965. This matter comes before the Board of Veterans' Appeals (Board) from a September 1996 rating determination of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in the veteran's July 1997 notice of disagreement he indicated that he desired a hearing. In his June 1998 VA Form 9, he indicated that he did not want a hearing. In a report of contact received in June 1999, the veteran's representative related that the veteran had nothing further to say. The Board finds that the veteran's subsequent statements effectively withdraw his prior request for a hearing. For reasons which will be discussed below, the issue of entitlement to an increased rating for schizophrenia will be considered in the remand portion of this decision. FINDINGS OF FACT 1. In July 1993, the RO denied service connection for hypertension. The veteran did not appeal. 2. The evidence submitted subsequent to the 1993 decision is either cumulative of evidence previously considered or is not relevant and probative. CONCLUSIONS OF LAW 1. The July 1993 RO decision, which denied entitlement to service connection for hypertension as secondary to service- connected schizophrenic reaction is final. 38 U.S.C.A. § 5108, 7105 (West 1991 & Supp. 1999); 38 C.F.R. § 3.104 (1999). 2. The veteran has not presented new and material evidence to reopen his claim for service connection for hypertension as secondary to service-connected schizophrenic reaction. 38 U.S.C.A. § 5108, 7104 (West 1991); 38 C.F.R. § 3.156(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background Service connection was denied for hypertension as secondary to service-connected schizophrenic reaction in an unappealed rating decision in July 1993. The RO determined that new and material evidence had not been submitted. The evidence of record at the time of the RO's July 1993 rating decision is as follows: Service medical records contain no findings referable to hypertension. On examination for separation from service the veteran's blood pressure was 110/64. A private medical examination report dated in January 1990 shows that the veteran's blood pressure was found to be 140/90, 100/90 before exercise, and 115/90 after exercise. Private medical records dated from July 1990 to March 1991 show treatment for an industrial injury. The records show that in July, August, October, and November 1990, the veteran had elevated blood pressure readings. It was noted that the veteran's treating physician was unable to determine whether the veteran's elevated blood pressure was related to his employment or his frustration due to his recent termination. There was also the issue of alcohol withdrawal and medications that the veteran was taking. In December 1990 shows that the veteran's blood pressure was found to be 140/96, but dropped after a couple minutes of rest to 130/88. The examiner noted that on several occasions it appeared that the veteran had fairly mild hypertension. The examiner was uncertain as to whether the veteran had sustained hypertension. In a rating decision dated in June 1991, the RO denied service connection for hypertension as secondary to service- connected schizophrenia. The RO determined that there was no medical evidence linking the two disabilities. Private medical records dated in September 1991 show treatment as a result of a motor vehicle accident. The veteran's blood pressure reading was found to be 152/104. During a November 1991 VA psychiatric examination, the veteran reported that he had been treated for hypertension since 1988. The veteran was accorded a VA examination in October 1991. The veteran's blood pressure was found to be 154/108 in the sitting position, 152/104 in the recumbent position, and 154/112 in the standing position. The impression was untreated hypertension, moderate. In a March 1992 decision, the RO determined that there was no new evidence to show hypertension was due to service- connected psychosis. Evidence submitted since the 1993 decision is as follows: VA outpatient treatment records dated from May 1985 to July 1994 show treatment for disabilities not currently at issue. VA outpatient treatment records dated from September 1994 to June 1997 show treatment for diabetes mellitus and hypertension. VA hospitalization report dated in October 1994 shows that the veteran was treated for hypertension and new onset diabetes. Pertinent Law and Regulations Following notification of an initial review and determination by the RO, a notice of disagreement must be filed within one year from the date of mailing of notification, followed by a timely substantive appeal; otherwise, the determination becomes final and is not subject to revision absent new and material evidence. 38 U.S.C.A. § 7105 (West 1991); 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 (West 1991). The veteran has petitioned to reopen a previously denied claim of service connection. If new and material evidence is presented or secured with respect to a claim that has been denied, the claim will be reopened, and the claim decided upon the merits. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Court has held that, when "new and material evidence" is presented or secured with respect to a previously and finally denied claim, the VA must reopen the claim. Stanton v. Brown, 5 Vet. App. 563, 566 (1993). "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 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) (1999). Evidence is new when not merely cumulative of other evidence in the record, and material when relevant and probative of the issue at hand. A three-step analysis is conducted under 38 U.S.C. § 5108. Elkins v. West, 12 Vet. App. 209 (1999). First, it must be determined whether the evidence presented or secured since the prior final disallowance of the claim is new and material. For purposes of determining whether new and material evidence has been submitted, "the credibility of the [new] evidence" is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). If the evidence is new and material, the Board must reopen the claim and review all the evidence of record to determine the outcome of the claim on the merits. The first step involves two questions: (1) Is the newly presented evidence "new" (not of record at the time of the last final disallowance of the claim and not merely cumulative of other evidence that was then of record)? (2) Is it "probative" of the issues at hand? Evans v. Brown, 9 Vet. App. 273 (1996). A third requirement for reopening imposed by the Court, that the evidence create a reasonable possibility of changing the outcome, has been invalidated by the United States Court of Appeals for the Federal Circuit. Hodge v. West, 155 F.3d 1356 (Fed Cir 1998). Second, if the claim is reopened, the VA must immediately determine whether, based upon all the evidence of record in support of the claim, presuming its credibility, see Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995), the claim as reopened (and as distinguished from the original claim) is well grounded pursuant to 38 U.S.C.A. § 5107 (West 1991). Third, if the claim is well grounded, the claim may be evaluated upon its merits provided the duty to assist contained in 38 U.S.C.A. § 5107(b) has been met. Winters v. West, 12 Vet. App. 203 (1999). In general, under pertinent law and VA regulations, service connection requires evidence that a disease or disorder was incurred in or aggravated by service or that the disease or disorder is otherwise attributable to service. See 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1999). The United States Court of Appeals for Veterans Claims (Court) has also held that when a service-connected disability aggravates but is not the proximate cause of a nonservice-connected disability, the veteran is entitled to service connection for the portion of the severity of the nonservice-connected disability that is attributable to the service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The United States Court of Veterans Appeals (Court) has held that in order for hypertension to be shown as a current disability, it must be present to the minimum compensable degree under the rating schedule. Cox v. Brown, 5 Vet. App. 95, 99 (1993); Rabidueau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under the rating schedule prior to January 12, 1998, the minimum compensable level of hypertension was shown where the disability was manifested by diastolic blood pressure readings predominantly 100 or more. A 10 percent evaluation was also provided where continuous medication was shown necessary for control of hypertension with a history of diastolic blood pressure predominantly 100 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101 (1997). Under the new rating criteria, the minimum compensable level of hypertension exists where the disability is manifested by diastolic readings predominantly 100 or more, or systolic readings predominantly 160 or more, or there is a history of diastolic readings of 100 or more and continuous medication is necessary for control of the hypertension. 38 C.F.R. § 4.104, Diagnostic Code 7101 (1999). Analysis The evidence submitted since the July 1993 disallowance includes private and VA medical evidence, showing ongoing treatment for hypertension. However, evidence of record at the time of the RO's previous decision showed that the veteran had hypertension. Accordingly, the evidence of continuing treatment is cumulative of evidence previously considered. The records subsequent to July 1993, like those of record prior to that date, do not provide competent evidence of a nexus between hypertension and the service- connected schizophrenic reaction or any other incident of service. Since the evidence is cumulative, it is not so significant that it must be considered to fairly decide the merits of the claim. The Board must conclude that new and material evidence has not been submitted to reopen the claim. 38 C.F.R. § 3.156(a). ORDER New and material evidence having not been submitted, the appeal to reopen the claim of entitlement to service connection for hypertension secondary to service-connected schizophrenia is not reopened. REMAND The RO attempted to schedule the veteran for VA examinations in August and September 1998. The veteran refused to report for these examinations. However, in August 1998, it was reported that the veteran had been an inpatient at the Brentwood (West Los Angeles) VA Medical Center since June 1998, and that it was not known how long he would be an inpatient. Records of this treatment have not been associated with the claims folder. Under Bell v. Derwinski, 2 Vet. App. 611 (1992), VA is deemed to have constructive knowledge of certain documents which are generated by VA agents or employees, including VA physicians. Id. at 612-13. If those documents predate a Board decision on appeal, are within VA's control, and could reasonably be expected to be part of the record, then "such documents are, in contemplation of law, before the Secretary and the Board and should be included in the record." Id. at 613. If such material could be determinative of the claim, a remand for readjudication is in order. Dunn v. West, 11 Vet. App. 462, 466 (1998). The Board further notes that where a veteran fails without good cause to report for a necessary examination scheduled in conjunction with a claim for increase, the claim will be denied. 38 C.F.R. § 3.655 (1999). The veteran has not been informed of these provisions. The Court has held that VA has a duty to inform claimants of the consequences of a failure to report for examinations. Connolly v. Derwinski, 1 Vet. App. 566 (1991) In view of the foregoing, this case is REMANDED for the following: 1. The RO should seek to obtain the names and addresses of all medical care providers who have treated the veteran for his psychiatric disorder since June 1998. After securing the necessary releases, the RO should obtain these records, including all records of the veteran's treatment at the Brentwood (West Los Angeles VA Medical Center). 2. The RO should then determine whether it is necessary to afford the veteran an examination in order to evaluate his service-connected psychiatric disability, or whether his claim can be evaluated on the basis of the current record without additional examination. If it determines that an examination is necessary, it should so inform the veteran and his representative. The veteran is reminded of the provisions of 38 C.F.R. § 3.655, referred to above. 3. If the RO determines that an examination is necessary, the veteran should be afforded an appropriate psychiatric examination to determine the current severity of the veteran's service connected schizophrenia. The examiner should review the claims folder before the examination. The examiner should report the veteran's Global Assessment of Function, and comment on the severity of the veteran's service connected schizophrenia, including its impact on his ability to maintain gainful employment. 4. After the development requested above has been completed to the extent possible, the RO should again review the record. The RO should ensure that the requested development requested above, has been completed in full. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. Mark D. Hindin Member, Board of Veterans' Appeals