Citation Nr: 1645474 Decision Date: 12/05/16 Archive Date: 12/19/16 DOCKET NO. 14-38 367 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim for entitlement to service connection for hypertension. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for left hypertensive retinopathy. 4. Entitlement to service connection for right hypertensive retinopathy. 5. Entitlement to service connection for glaucoma suspect, left eye. ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from February 1961 to August 1964. This appeal arises to the Board of Veterans' Appeals (Board) from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The January 2014 rating decision reopened the Veteran's hypertension claim finding that new and material evidence had been received. Regardless of the RO's actions, the Board is required to consider whether new and material evidence has been received warranting the reopening of the previously denied claims. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In addition to the issues listed on the cover page, five more issues were included in the May 2014 Statement of the Case (SOC), specifically entitlement to service connection for arthritis, gout, bilateral immature cataracts, right eye glaucoma, and hypertensive arteriosclerotic heart disease. A timely substantive appeal for these issues, however, was not received. In that regard, the Board notes that a substantive appeal including these issues was received in October 2014 (dated in August 2014); however, the substantive appeal was not timely as to these additional five issues, as the substantive appeal was not within 60 days of the SOC or within one year of the original rating decision adjudicating the claims (December 2012). 38 C.F.R. § 20.302(b) (2015). As the Octobe 2014 substantive appeal can be construed as raising new claims for the foregoing issues, they will be referred herein. The issues of entitlement to service connection for a hearing loss disability and whether new and material evidence has been received sufficient to reopen claims for entitlement to service connection for arthritis, gout, bilateral immature cataracts, right eye glaucoma, and hypertensive arteriosclerotic heart disease have been raised by the record in an October 2014 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). 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 issues of entitlement to service connection for hypertension, right and left hypertensive retinopathy, and left eye glaucoma are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In June 2010, the RO denied the Veteran's claim for entitlement to service connection for hypertension, finding that there was no evidence of an in-service diagnosis of hypertension, diagnosis within one year of separation from service, no verified service in the Republic of Vietnam or exposure to Agent Orange, or evidence of a current hypertension disability. The Veteran did not appeal. 2. Evidence received since the June 2010 rating decision raises a reasonable possibility of substantiating the Veteran's hypertension claim. CONCLUSIONS OF LAW 1. The June 2010 rating decision that denied the claim for entitlement to service connection for hypertension is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2015). 2. Evidence received since the June 2010 rating decision in relation to the Veteran's claim for entitlement to service connection for hypertension is new and material, and, therefore, the claim may be reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION New and Material Evidence The Veteran claims that he has a current hypertension disability that is the result of his active service. Specifically, he alleges that the hypertension is due to exposure to Agent Orange during service in the Republic of Vietnam and/or Thailand. Rating actions are final and binding based on evidence on file at the time the Veteran is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104 (a) (2015). The Veteran has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c) (West 2014); 38 C.F.R. §§ 3.160(d), 20.201, 20.302(a) (2015). The Veteran originally was denied entitlement to service connection for hypertension in a June 2010 rating decision. The claim was denied on the basis that there was no evidence of an in-service diagnosis of hypertension, diagnosis within one year of separation from service, no verified service in the Republic of Vietnam or exposure to Agent Orange, or evidence of a current hypertension disability. The Veteran did not appeal the denial by submitting a timely NOD or other indication of disagreement with the rating decision within one year. The denial of his claim consequently became final. See 38 C.F.R. §§ 20.302, 20.1103 (2015). In reaching that conclusion, the Board recognizes that within the one year time period to appeal the June 2010 rating decision the Veteran submitted several statements regarding his claimed Agent Orange exposure during service; however, these statements did not express disagreement with the denial of the hypertension claim in the June 2010 rating decision or otherwise express disagreement with that decision. Instead, the Veteran had other claims ongoing at that time and the above statements were interpreted by the RO not as NODs, but as statements regarding ongoing claims. The Board finds no basis to dispute these findings by the RO. As a result, a claim for entitlement to service connection for hypertension may be considered on the merits only if new and material evidence has been received since the time of the last final adjudication. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). Under 38 C.F.R. § 3.156 (a), evidence is considered "new" if it was not of record at the time of the last final disallowance of the claim. 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. Finally, 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. In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Additionally, when determining whether the Veteran has submitted new and material evidence to reopen a claim, consideration must be given to all the evidence since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273 (1996). Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). The evidence of record at the time of the last final decisions consisted of the Veteran's service treatment records (STRs), statements from the Veteran, and medical treatment records. The Veteran's original February 2010 claim stated, "As a Vietnam War Veteran I was exposed to Agent Orange related disease incurred in[] active service." He did not, however, provide any specific argument as to when or how he was exposed to Agent Orange or other herbicides. In addition, although the June 2010 rating decision indicated that the Veteran did not have a current diagnosis of hypertension, at that time the record also included a VA general medical examination from July 1999, which indicated that the Veteran had been diagnosed with hypertension from 1964 and for which he was on medication. In addition, a March 2006 letter from a private physician indicated that the Veteran had blurring of vision due to his hypertension, which certainly suggested the existence of a current hypertension disability. Evidence received since the June 2010 rating decision consists of multiple lay statements from the Veteran, numerous VA and private treatment records, and records from the Veteran and others detailing the movement of the ships on which the Veteran served. The Veteran claims that he has a current hypertension disability due to his in-service exposure to Agent Orange. For evidence to be new and material, it would have to tend to show that the Veteran has a current hypertension disability that was incurred in or is otherwise related to active service, to include as due to exposure to Agent Orange. The Board finds the evidence received since the June 2010 rating decision does so. In that regard, since the June 2010 rating decision the Veteran has submitted numerous statements providing greater detail as to his alleged in-service Agent Orange exposure. Specifically, the Veteran now contends that he set foot on the landmass of Vietnam during his service aboard the USS Bayfield in August 1963 and stayed there for about one week. In support of that assertion, he has submitted a document noting that the Bayfield conducted troop loadings and landings in Vietnam. The Veteran also has contended exposure to Agent Orange while aboard the USS Navarro in May 1962 while landing troops at Bangkok, Thailand, due to the close proximity of the Mekong Delta and Vietnam. These specific contentions were not of record at the time of the June 2010 rating decision. Thus, there are now more specific arguments regarding his alleged exposure to Agent Orange during service. Pursuant to the Court's holding in Shade and presuming the credibility of the evidence for the sole purpose of determining whether the claim should be reopened, the Board concludes that the above, at the very least, raises a reasonable possibility of substantiating the claim and constitutes new and material evidence sufficient to reopen the Veteran's hypertension claim. However, as will be discussed more fully below, the Board finds that additional development is necessary prior to adjudication of the claim of entitlement to service connection for hypertension on the merits. ORDER New and material evidence having been received, the claim for entitlement to service connection for hypertension is reopened; the appeal is granted to this extent only. REMAND As to the Veteran's hypertension claim, the Board notes that he has not been afforded a VA examination. As outlined above, there is evidence of a current disability and a notation in the July 1999 examination that his hypertension had been initially diagnosed in 1964. As the Veteran separated from service in August 1964, the foregoing suggests that the Veteran may have been diagnosed with hypertension either during service or within one year of separation from service. The Veteran's service treatment records do not support an in-service diagnosis. The Board notes that the Veteran did have a blood pressure of 160/90 in August 1963, during a bout of bacterial tonsillitis. His August 1964 Report of Medical Examination prior to separation from service, however, included a blood pressure reading of 118/78 and no finding of hypertension or elevated blood pressure. That said, a diagnosis of hypertension could have been made at some point in 1964 after separation from service. In that regard, service connection for certain chronic diseases, including hypertension, will be presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). As the precise basis of the July 1999 notation of a 1964 diagnosis of hypertension remains unclear and the Veteran has not argued that hypertension was manifest to a compensable degree within one year of separation from service, the Board concludes that a remand for an examination is necessary. As to the Veteran's contentions that he was exposed to Agent Orange or other herbicides during service, the Board finds that the ordered examination need not consider such a theory. As noted above, the Veteran has argued at different times that he was exposed to herbicides while serving aboard the USS Bayfield in August 1963 when he spent a week on the landmass of the Republic of Vietnam and/or that he was exposed to Agent Orange while aboard the USS Navarro in May 1962 while landing troops at Bangkok, Thailand, due to the close proximity of the Mekong Delta and Vietnam. As to the USS Bayfield, the Veteran's overall active service ended in August 1964 and his service aboard the Bayfield ended in August 1963. The Veteran submitted a document indicating that the USS Estes was the amphibious force flagship for Amphibious Group Three, of which the USS Bayfield was a part, and had service in Vietnam from August 1963 to October 1963 in the Western Pacific and Vietnam. The Veteran contends that this proves the USS Bayfield was in Vietnam during August 1963 when the Veteran was onboard and shows that he, in fact, did have service on the landmass of Vietnam. However, records submitted specifically involving the USS Bayfield have indicated that she was not involved in support operations for the conflict in the Republic of Vietnam until July 1965. Moreover, multiple requests to the National Personnel Records Center (NPRC) have indicated that there is no indication that the Veteran had service in the Republic of Vietnam. As such, the Board finds no basis to support the Veteran's assertion of Vietnam service while aboard the USS Bayfield. As to his contentions regarding the USS Navarro, the evidence indicates that in May 1962 the ship sailed through what was then the Bay of Siam, up the Chao Phraya River, and landed troops in Bangkok, Thailand. Records support that the Veteran was onboard during this time period. That said, the Board notes that access to Bangkok is made via the Chao Phraya River, which is many, many miles removed from the Mekong Delta and Vietnam and there is no competent evidence to support a finding of Agent Orange exposure while in service in these areas. As for herbicide use in Thailand, a December 2012 memorandum noted the use of herbicides on the perimeter of several bases in Thailand, but there is no evidence or suggestion that the Veteran had service at those bases in general or the perimeter of the bases in particular. As such, the Board does not find that the evidence currently of record supports a finding of exposure to herbicides while in service aboard the USS Navarro. Finally, as to the claimed right and left hypertensive retinopathy and left eye glaucoma, suspect, these issues appear to be inextricably intertwined with the hypertension claim, as there is evidence to suggest that these disabilities may have been caused or aggravated by the claimed hypertension. As such, adjudication of these issues is deferred pending the above-ordered development of the hypertension claim. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for an appropriate examination of his claimed hypertension disability. The examiner is requested to review the electronic claims file and to indicate that such a review has been accomplished. The examiner is requested to obtain a complete history from the Veteran and conduct an examination, with any indicated diagnostic testing. After completing the following, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any currently diagnosed hypertension disability: (a) was incurred in or is otherwise related to the Veteran's active service or (b) was manifest to a compensable degree within one year of separation from service. The examiner is invited to consider the July 1999 VA general medical examination report that indicated the Veteran had been diagnosed with hypertension in 1964 following a blood pressure reading of 140/100 and was started on medication. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 2. If and only if a positive opinion as to the etiology of the Veteran's hypertension disability is obtained as a result of the above examination, schedule the Veteran for an appropriate examination of his claimed right and left hypertensive retinopathy and left eye glaucoma disabilities. The examiner is requested to review the electronic claims file and to indicate that such a review has been accomplished. The examiner is requested to obtain a complete history from the Veteran and conduct an examination, with any indicated diagnostic testing. After completing the following, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any currently diagnosed right and left hypertensive retinopathy and left eye glaucoma disability: (a) was incurred in or is otherwise related to the Veteran's active service or (b) was caused or aggravated by his diagnosed hypertension disability. The examiner is invited to consider the March 2006 letter from a private physician indicated that the Veteran had blurring of vision due to his hypertension. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. After the above is complete, readjudicate the Veteran's claims. If a complete grant of the benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran, and he should be given an opportunity to respond, before the case is returned to the Board. 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs