HYPERTENSION

Summary

The veteran, who served in the U.S. Army from March 1979 to March 1983, appeals the denial of service connection for hypertension and the remand of his claim for compensation under 38 U.S.C. § 1151 for PTSD. The Board first addressed the hypertension claim, finding that new and material evidence had been submitted since the February 2003 denial, thus reopening the claim. However, the Board denied service connection for hypertension, finding that the evidence did not establish it was proximately due to, the result of, or aggravated by his service-connected depression and joint disabilities. The Board found the November 2019 VA examiner's opinion, which attributed the hypertension to age and obesity and found it independent of medication for his service-connected conditions, to be the most probative evidence. The veteran's own contentions and internet research were deemed insufficient. The Board then addressed the PTSD claim, which was remanded for further development. The veteran alleges PTSD resulted from a sexual assault by a VA nurse and discriminatory treatment during his March 1993 hospitalization at the Miami VAMC. While the discharge summary noted a problem with a nurse and an ongoing investigation, the record lacks specific details. The Board remanded the matter for retrieval of any investigation reports or documentation related to the alleged assault and discriminatory treatment.

Rationale

New and material evidence submitted raised a reasonable possibility of substantiating the claim, allowing the claim to be reopened.; The November 2019 VA examiner's opinion was found to be the most probative evidence.; The VA examiner attributed hypertension to age and obesity, finding it independent of medication for service-connected conditions.

Full Decision Text

Citation Nr: 20043214
Decision Date: 06/25/20	Archive Date: 06/25/20

DOCKET NO. 18-33 827
DATE: June 25, 2020

ORDER

New and material evidence having been received, the Veteran’s claim for entitlement to service connection for hypertension is reopened.

Service connection for hypertension, to include as secondary to service-connected disabilities, is denied.  

REMANDED

Entitlement to compensation under 38 U.S.C. § 1151 for post-traumatic stress disorder (PTSD) is remanded.  

FINDINGS OF FACT

1. In a February 2003 rating decision, the RO denied service connection for hypertension.  The Veteran did not appeal that decision and it became final.  

2. Evidence added to the record since the February 2003 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of service connection for hypertension.  

3. The competent evidence of record does not reflect that the Veteran’s hypertension is proximately due to, the result of, or aggravated by his service-connected disabilities or any medication used to treat such disabilities.

CONCLUSIONS OF LAW

1. New and material evidence has been received since the February 2003 rating decision denying entitlement to service connection for hypertension; the criteria for reopening this claim have been met.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a).  

2. The criteria for service connection for hypertension have not been met.  38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.  

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from March 1979 to March 1983.  

This matter is before the Board of Veterans’ Appeal (Board) on appeal from an October 2017 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO).  

1. Whether new material evidence has been received in order to reopen a claim of entitlement to service connection for hypertension.  

VA may reopen a claim for service connection which has been previously and finally disallowed when new and material evidence has been presented or secured since the last final disallowance of the claim.  38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996).

In this regard, “new evidence” means existing evidence not previously submitted to VA.  “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.  Taken in combination, 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).

New evidence may be sufficient to reopen a claim if it can contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim.  Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992).  

Thus, the Board must first determine whether new and material evidence has been submitted under 38 C.F.R. § 3.156(a) to have a claim reopened under 38 U.S.C. § 5108.  Elkins v. West, 12 Vet. App. 209 (1999).  Then the Board may proceed to evaluate the merits of the claim after ensuring that VA’s duty to assist has been fulfilled.  See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999).  

The law should be interpreted to enable reopening of a claim, rather than to preclude it.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record.  

The RO initially denied the Veteran’s claim for secondary service connection for hypertension in February 2003 on the basis of lack of evidence of hypertension and a service-connected disability. 
 has been fulfilled.  See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999).  

The law should be interpreted to enable reopening of a claim, rather than to preclude it.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record.  

The RO initially denied the Veteran’s claim for secondary service connection for hypertension in February 2003 on the basis of lack of evidence of hypertension and a service-connected disability.  This denial of service connection became final, as the Veteran did not initiate an appeal of the RO’s rating decision, nor was any new and material evidence received within a year.  See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103.  

Although the RO reopened the claim, RO decisions are not binding on the Board and, consequently, the Board must decide whether new and material evidence has been received to reopen the Veteran’s claim.  Jackson v. Principe, 265 F.3d 1366 (Fed. Cir. 2001) (holding that Board reopening is unlawful when new and material evidence has not been submitted).  

The Board must now determine whether new and material evidence has been submitted since the February 2013 rating decision sufficient for the reopening of the Veteran’s claim.  To that end, the Veteran has presented evidence of a diagnosis of hypertension and service-connected disabilities that could be related to the Veteran’s hypertension.  This evidence is new as it was not of record at the time of the previous final denial.  

The Board finds that the new evidence does raise a reasonable possibility of substantiating the Veteran’s claim.  Again, the February 2003 rating decision denied the Veteran’s claim on the basis that hypertension was not shown.  The new evidence not only establishes that the Veteran has a diagnosis hypertension, it also establishes the reasonable possibility that the Veteran’s hypertension could be due to his service-connected depression and joint disabilities.  This evidence raises a reasonable possibility of substantiating the Veteran’s claim.  

Therefore, the Board finds that new and material evidence is of record since the prior final denial of this claim in February 2003.  Shade, 24 Vet. App. at 117.  The claim of entitlement to service connection for hypertension is thus reopened.  

2. Service connection for hypertension, to include as secondary to service-connected depression and joint disabilities.  

The Veteran contends that his hypertension is proximately due to or caused by his service-connected depression and joint disabilities.  Specifically, the Veteran contends that the medication prescribed for his service-connected psychiatric and joint disabilities has resulted in or aggravated his hypertension.  The Veteran does not contend, and the evidence does not indicate, that his hypertension had its onset during or is otherwise directly related to his active service.  The Board shall focus its analysis on the secondary theory of entitlement alone.  

A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b).

As to the first element of secondary service connection, current disability, the record indicates that the Veteran has a diagnosis of hypertension. The Veteran is also service-connected for depression and multiple joint disabilities.  

There is, however, no evidence that the Veteran's hypertension was caused or aggravated by his service-connected depression and joint disabilities.  The November 2019 VA examiner opined that the Veteran’s hypertension was not secondary or proximately due to or caused by his service-connected depression and joint disabilities, or any medication prescribed for the service-connected conditions.  The VA examiner highlighted that the risk factors for development of primary hypertension, including advancing age, obesity, family history, race, reduced nephron number, high sodium diet, excessive alcohol consumption, and physical inactivity.  The Veteran is noted to suffer from morbid obesity, and weight and blood pressure are noted to have a direct correlation between the two.  The VA examiner noted that certain pain and anti-inflammatory medications can caused water retainment, kidney problems, and increasing blood pressure, however the VA examiner found that the Veteran’s hypertension to be independent of his depression and joint disabilities medication.  She identified the Veteran’s risk factors of age and obesity as the primary factors in the Veteran’s development of hypertension.  

In this case, as to the
 The VA examiner highlighted that the risk factors for development of primary hypertension, including advancing age, obesity, family history, race, reduced nephron number, high sodium diet, excessive alcohol consumption, and physical inactivity.  The Veteran is noted to suffer from morbid obesity, and weight and blood pressure are noted to have a direct correlation between the two.  The VA examiner noted that certain pain and anti-inflammatory medications can caused water retainment, kidney problems, and increasing blood pressure, however the VA examiner found that the Veteran’s hypertension to be independent of his depression and joint disabilities medication.  She identified the Veteran’s risk factors of age and obesity as the primary factors in the Veteran’s development of hypertension.  

In this case, as to the issue of whether the Veteran's hypertension is proximately due to or caused by the Veteran's service-connected depression, and/or joint disabilities, the Board finds that the November 2019 VA examination report is the most probative evidence of record as it was definitive, based upon a complete review of the Veteran's entire claims file, and in consideration of the Veteran's reported history.  Furthermore, the November 2019 VA examiner provided a complete and thorough rationale in support of her opinion.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  

There is no other competent evidence relating the Veteran's hypertension to his service-connected disabilities.  To the extent that the Veteran contends that his hypertension is secondary to his service-connected disabilities, the Board finds that his opinion, on its own, is not competent.  Determining the etiology of a disability such as hypertension is complex, requiring medical knowledge or training that the Veteran is not shown to possess.  To the extent that the Veteran’s representative submitted internet research regarding connections between psychiatric disorder and hypertension, this research is non-specific, and it is granted much less probative weight than the opinion of the VA examiner.  

Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990); 38 C.F.R. § 3.102.  Thus, the Veteran's claims for entitlement to service connection for hypertension, to include as secondary to his service-connected depression and/or multiple joint disabilities, is denied.  

REASONS FOR REMAND

Entitlement to compensation under 38 U.S.C. § 1151 for post-traumatic stress disorder (PTSD) is remanded.   

The Veteran contends that his claimed PTSD is a result of the VA's carelessness, negligence, lack of proper skill, error in judgment, or other instance fault when treating his psychiatric disability.  Specifically, the Veteran contends that his PTSD is the result of a sexual assault by VA nurse and unfair discriminatory treatment while receiving treatment in a VA medical center.  

From November 17, 1992 to March 5, 1993, the Veteran was hospitalized at the Miami VAMC due to feeling depressed and difficulties adjusting to everyday life.  See March 1993 Medical Treatment Notes.  During this time, the Veteran alleges that he was sexually assaulted and verbally abused by a VA nurse.  He also contends that the matter was not properly investigated, if at all.  The Veteran also claims that he is the victim of a discriminatory plot to prevent him from receiving compensation for his PTSD.  The Veteran, however, has not provided any specific facts regarding his alleged sexual assault and discriminatory treatment, beyond his general claim that said sexual assault and discriminatory treatment occurred.  The Veteran did report that an investigation was completed, and the nurse was terminated from his position.  

Review of Veteran’s March 1993 discharge report indicates that the Veteran did have a “problem” with one of the nurses in the unit and that the matter was being investigated.  The discharge report did not contain any specific details related to the problem between the nurse and the Veteran.  The record does not contain any notation and/or further documentation of the alleged incident.  As such, further development is needed to retrieve any outstanding investigation reports, and/or documentation related to the Veteran’s accusation of sexual assault at the Miami VAMC in 1993.   

The matters are REMANDED for the following action:

Contact any appropriate repositories to obtain any investigative reports, notes, or any other documentation related to the Veteran’s accusation of sexual assault, or any other incident with a nurse during his February through March 1993 hospitalization at
problem” with one of the nurses in the unit and that the matter was being investigated.  The discharge report did not contain any specific details related to the problem between the nurse and the Veteran.  The record does not contain any notation and/or further documentation of the alleged incident.  As such, further development is needed to retrieve any outstanding investigation reports, and/or documentation related to the Veteran’s accusation of sexual assault at the Miami VAMC in 1993.   

The matters are REMANDED for the following action:

Contact any appropriate repositories to obtain any investigative reports, notes, or any other documentation related to the Veteran’s accusation of sexual assault, or any other incident with a nurse during his February through March 1993 hospitalization at the Miami VAMC.  If any such reports or documentation is obtained, then perform any necessary development stemming from those documents.

 

 

Evan M. Deichert

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J.R. Higgins, Associate Counsel

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.