Citation Nr: 1613347 Decision Date: 04/01/16 Archive Date: 04/13/16 DOCKET NO. 14-38 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for diabetes mellitus, Type II, to include as due to herbicide exposure. 2. Whether new and material evidence has been received to reopen a claim of service connection for labile blood pressure/hypertension. 3. Entitlement to service connection for labile blood pressure/hypertension, to include as due to herbicide exposure and/or diabetes mellitus, Type II. REPRESENTATION Appellant represented by: Alan Watt, Agent WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Ishizawar, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1958 to August 1988. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the San Diego, California Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for diabetes mellitus, Type II, and declined to reopen a claim of service connection for labile blood pressure/hypertension. Although the RO implicitly reopened the Veteran's claim of service connection for labile blood pressure/hypertension by addressing the issue on its merits in a September 2014 statement of the case (SOC), the question of whether new and material evidence has been received to reopen such claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly. In February 2016, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to service connection for labile blood pressure/ hypertension (on a de novo basis) is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. It is reasonably shown by the record that the Veteran was exposed to herbicides in service. 2. The Veteran has a diagnosis of diabetes mellitus, Type II, which is a disease listed as being associated with exposure to certain herbicide agents. 3. An unappealed March 1989 rating decision denied service connection for labile blood pressure/hypertension based essentially on a finding that there was no confirmed diagnosis of that disability. 4. Evidence received since the March 1989 rating decision that denied service connection for labile blood pressure/hypertension is new and material in that it is not cumulative, was not previously considered by decision makers, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. Service connection for diabetes mellitus, Type II, is warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2015). 2. The May 1989 rating decision that denied service connection for labile blood pressure/hypertension is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156, 20.1103 (2015). 3. New and material evidence has been received to reopen the issue of service connection for labile blood pressure/hypertension. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Board finds that VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). In particular, this decision grants in full that portion of the claim that is being addressed (i.e., the claim for service connection for diabetes mellitus, Type II, and the request to reopen a claim of service connection for labile blood pressure/hypertension). As these decisions are completely favorable to the Veteran, there is no reason to belabor the impact of the VA's duty to notify and assist on these matters. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). II. Legal Criteria, Factual Background, and Analysis As an initial matter, the Board notes it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the issues on appeal. Service connection Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a claimed disability, there must be evidence of: (1) a present disability; (2) incurrence or aggravation of a disease or injury in service; 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, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (including diabetes mellitus) may be service-connected on a presumptive basis if manifested to a compensable degree in a specific period of time postservice (one year for diabetes mellitus). 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Section 1112 does not apply in this case, as the medical evidence does not show, and the Veteran does not contend, that the disability in question was diagnosed in service or within one year thereafter. However, if a Veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease manifested to a degree of 10 percent or more, the Veteran is entitled to a presumption of service connection for such disease even though there is no record of such disease during service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307, 3.309(e). Diabetes mellitus, Type II, is an enumerated disease. The Veteran's claim of service connection is predicated, on part, on his alleged exposure to herbicides while serving in the U.S. Navy during the Vietnam Era. The record reflects that the Veteran's service in the U.S. Navy includes service during the Vietnam Era, at which time he was stationed aboard the USS Grayback (a submarine) for at least the following periods: September 28-29, 1970; May 11-13, 1971; January 26-28, 1972; and May 31, 1972-June 24, 1972. See Service personnel records submitted by the Veteran in October 2014. It is the Veteran's contention that he should be presumed to have been exposed to herbicides in service because the USS Grayback was "stationed in the offshore and inland waterways of the Republic of Vietnam during the Vietnam Era." See October 2014 VA Form 9, substantive appeal (emphasis added). At the February 2016 videoconference, he also testified that in preparation for Operation Thunderhead, which took place off the coast of North Vietnam in June 1972 (see textual evidence submitted by the Veteran in October 2014), the USS Grayback practiced missions close to the shore of South Vietnam. In between these practices, he and the others from his submarine would go outside and have barbecues. See February 2016 hearing transcript, p. 6. The Board finds no reason to question the Veteran's credibility with respect to this testimony, as the circumstances, conditions, and duties he described are consistent with service aboard a U.S. submarine that was stationed off the waters of the Republic of Vietnam during the Vietnam Era. Consequently, the Board concludes that the evidence regarding his alleged exposure to herbicides is at least in equipoise. Resolving reasonable doubt in his favor, as required under these circumstances (see 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102), the Board finds that he is shown to have been exposed to herbicides in service. The Veteran has a diagnosis of diabetes mellitus, Type II (see, e.g., July 2014 VA examination report) and his exposure to herbicides is established. The record also shows that he takes an oral hypoglycemic agent to treat the disease. Thus, the record suggests that the condition has manifested to a compensable degree after the Veteran's service. See 38 C.F.R. § 3.307(6)(ii) (2015); 38 C.F.R. § 4.120, Diagnostic Code 7913 (2015). Consequently, he is entitled to service connection for this disability on a presumptive basis. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). New and material evidence The Veteran's appeal regarding labile blood pressure/hypertension arises out of his contention that this disability is etiologically related to either his active duty military service or his diabetes mellitus, Type II. The Board notes the record also raises the question of whether his labile blood pressure/hypertension is secondary to his herbicide exposure in service. Service connection for labile blood pressure/hypertension was denied initially by a March 1989 rating decision, based essentially on a finding that the Veteran did not have a confirmed diagnosis of hypertension. The Veteran did not appeal the March 1989 rating decision or submit new and material evidence within one year of that decision; therefore, it is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(a), (b). In February 2011, the Veteran filed a claim to reopen his previously denied claim of service connection for labile blood pressure/hypertension. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the United States Court of Appeals for Veterans Claims (Court) clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. Evidence received since the March 1989 rating decision includes a May 2014 statement from the Veteran's private healthcare provider, Dr. M.T.O.V., and the report from a VA examination conducted in July 2014. According to Dr. M.T.O.V., the Veteran "suffers from multiple medical problems such as . . . hypertension . . . ." Hypertension was also diagnosed during the July 2014 VA examination. As the May 2014 statement from Dr. M.T.O.V. and the July 2014 VA examination report addresses the basis for the prior denial of the Veteran's claim (i.e., the lack of a confirmed diagnosis of hypertension), the Board finds that the new evidence relates to an unestablished fact necessary to substantiate the claim of service connection for labile blood pressure/hypertension, and therefore raises a reasonable possibility of substantiating such claim. See Shade, 24 Vet. App. at 117-18. Thus, the Board finds that the additional evidence is both new and material, and the claim for entitlement to service connection for labile blood pressure/hypertension is reopened. ORDER Service connection for diabetes mellitus, Type II, is granted. The appeal to reopen a claim of service connection for labile blood pressure/hypertension is granted. REMAND The Veteran seeks service connection for labile blood pressure/hypertension. As was discussed briefly above, he contends this disability is either directly related to his service or secondary to his diabetes mellitus, Type II. The record also raises the question of whether this disability is related to his exposure to herbicides in service. As the above decision grants service connection for diabetes mellitus, Type II, a medical examination for an opinion is necessary to determine whether the Veteran's labile blood pressure/hypertension was caused or aggravated by his diabetes mellitus, Type II. Moreover, although VA has not conceded a relationship between hypertension and Agent Orange, it is significant to note that prior to 2006, the National Academy of Science (NAS) placed hypertension in the "Inadequate or Insufficient Evidence" category. However, in its 2006 Update, NAS elevated hypertension to the "Limited or Suggestive Evidence" category. Update 2012 provides the history of NAS changing the categorization of hypertension beginning in its 2006 Update and subsequent Updates. See 79 Fed. Reg. 20,308 (April 11, 2014). Specifically, it notes that NAS has defined this category of limited or suggestive evidence to mean that the "evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence." Id. at 20,309. In light of the NAS study findings, the Board finds that a medical examination for an opinion is also necessary to determine whether the Veteran's current labile blood pressure/hypertension is etiologically related to his now-conceded exposure to herbicides in service. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran and ask that he identify the provider(s) of any treatment or evaluation he has received for his labile blood pressure/hypertension, records of which are not already associated with the claims files, and to provide any releases necessary for VA to secure such records of treatment or evaluation. Obtain complete records of all such treatment or evaluation from all sources identified by the Veteran. 2. After completing the above, schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of his hypertension. The Veteran's claims file (to include this decision) must be reviewed by the examiner in conjunction with the examination. Upon examination and interview of the Veteran, and review of pertinent medical history, the examiner should provide opinions responding to the following: a) Is it at least as likely as not (50 percent or better probability) that the Veteran's hypertension is related to his military active duty service, and specifically to his exposure to herbicides therein? (The examiner is advised that the Board is cognizant that there is no VA presumption of service connection for hypertension as due to herbicide exposure. The Agent Orange Updates speak to associations between exposure to chemicals and health outcomes in human populations, and not to the likelihood that any individual's health problem is associated with or caused by the herbicides in question. Thus, the question here is what is the likelihood that this Veteran's hypertension is related to his herbicide exposure given his medical history, family history, risk factors, etc.). b) Is it at least as likely as not (50 percent or better probability) that the Veteran's hypertension was caused by his service-connected diabetes mellitus, Type II? c) If the Veteran's hypertension was not caused by his service-connected diabetes mellitus, Type II, is it at least as likely as not (50 percent or better probability) that it was aggravated by his diabetes mellitus, Type II? The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of hypertension present (i.e., a baseline) before the onset of the aggravation. The examiner should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 3. After the above development has been completed, review the file and ensure that all development sought in this remand is completed. Undertake any additional development indicated by the results of the development requested above, and re-adjudicate the claim. If it remains denied, the RO/AMC should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs