Citation Nr: 1801633	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  14-20 350	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

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

2. Entitlement to service connection for hypertension.

3. Entitlement to service connection for hypothyroidism.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

M. Purdum, Counsel


INTRODUCTION

The Veteran served on active duty from February 1982 to November 2004. 

These matters come to the Board of Veterans' Appeals (Board) on appeal from a November 2012 decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the claims on appeal.

The Veteran and his spouse testified before the undersigned at a November 2016 video-conference hearing.  A hearing transcript is in the claims file.

The issues of entitlement to service connection for hypertension and hypothyroidism, addressed in the REMAND portion of the decision below, are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran did not appeal a March 2005 RO decision that denied entitlement to service connection for hypertension.

2. Evidence received since the March 2005 RO decision is not cumulative or redundant of evidence previously of record and raises a reasonable possibility of substantiating the claim of entitlement to service connection for hypertension.





CONCLUSIONS OF LAW

1. The March 2005 RO decision that that denied entitlement to service connection for hypertension is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2017). 

2. The evidence received subsequent to the March 2005 RO decision is new and material; the claim of entitlement to service connection for hypertension is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In general, VA rating decisions that are not timely appealed are final.  See 38 U.S.C. § 7105; 38 C.F.R. § 20.302.  Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim.  New evidence is defined as evidence not previously submitted to agency decision makers.  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.  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.  See 38 C.F.R. § 3.156 (a). 

The last final denial of the Veteran's claim of entitlement to service connection for hypertension was in March 2005, and he was notified of the same in a March 2005 letter from the RO.  The Veteran did not file a Notice of Disagreement (NOD), nor was any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate period.  38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).  As such, the March 2005 rating decision became final.

Relevant evidence added to the record since the prior RO rating decision includes the Veteran's statements, including those made during his November 2016 Board hearing, as to in-service elevated blood pressure readings and resultant evaluation, as well as post-service treatment records revealing treatment for hypertension. While such statements and treatment records are not sufficient evidence to grant service connection, further development by VA is required in order to adjudicate the appeal.  Shade v. Shinseki, 24 Vet. App. 110, 118 (2010) (in determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim with VA's assistance). 

An examination is warranted to determine the onset and etiology of the Veteran's hypertension.  Such is the VA assistance contemplated by Shade and there is new and material evidence; the claim is thus reopened.


ORDER

New and material evidence having been received, the claim of entitlement to service connection for hypertension is reopened, and to that extent only, the appeal is granted.


REMAND

The Veteran contends that his hypertension and hypothyroidism are related to service on the basis that such were present at that time, based on laboratory findings.  

The Veteran's service treatment records dated from 1986 to 1988, and in 1997, indicate that he sought treatment on a number of occasions for chest pain or tightness in the chest.  Service treatment records dated in May 2004 appear to include report that the Veteran asserted a history of elevated blood pressure and essential hypertension not otherwise specified in the Veteran's problem list. 

On VA examination in August 2004, prior to the Veteran's November 2004 separation from service, the Veteran reported being worked up for increased blood pressure.  The examiner noted that five-day blood pressure readings were normal in as recently as July 2004; and there were no signs of hypertension or treatment.

Service treatment records dated in September 2004 indicate that the Veteran underwent cardiac evaluation and results of such revealed five-day blood pressure readings, summarized as 130-140s/85-95.

Post-service treatment records dated in September 2005 include result of the Veteran's laboratory findings revealing hypothyroidism.  VA treatment records dated in December 2011 indicate that the Veteran was prescribed medication for blood pressure and issued a blood pressure monitor, and in June 2012, hypertension appeared on VA his problem list. 

In a January 2012 letter, one of the Veteran's post-service treatment providers reported that the Veteran had been diagnosed with hyperthyroidism, initially evaluated by the Army in 2005, found to have elevated laboratory findings, never addressed during service although abnormal findings were noted in record.

During the Veteran's November 2016 Board hearing, his spouse, a health information management technician who reviewed the Veteran's records, reported that the Veteran had black eyes during service when he returned from Iraq and his blood pressure and thyroid readings were too high. The Veteran reported that he lost a lot of weight in Iraq and also ballooned upon return and that due to such, a thyroid check was required during his physical examination at separation from service.

On remand, the AOJ should afford the Veteran a VA examination(s) to determine the onset and etiology of his hypertension and hypothyroidism. 

The Veteran's most recent VA treatment records associated with the claims file are dated in April 2016; on remand, the AOJ should obtain his updated VA treatment records.

Accordingly, the case is REMANDED for the following action:

1. Make arrangements to obtain and associate with the Veteran's claims file his updated VA treatment records, those dated since April 2016.

2. Then, schedule the Veteran for a VA examination(s) as to his hypertension and hypothyroidism.  Complete examinations, including any required diagnostic tests, should be completed. 

(a) For the Veteran's hypertension, the examiner should opine as to whether it is at least as likely as not (at least a 50 percent probability) that hypertension, defined by regulation as such that "...must be confirmed by readings taken two or more times on at least three different days....[T]he term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater" was incurred in active service, considering the Veteran's lay assertions that he had elevated blood pressure readings during service, his treatment records dated from 1986 to 1988, and in 1997, indicating that he sought treatment on a number of occasions for chest pain or tightness in the chest, and specifically commenting on the propriety of the service treatment records dated in 2004 which appear to include report that the Veteran asserted a history of elevated blood pressure and essential hypertension not otherwise specified in his problem list.

(b) The examiner should opine as to whether it is at least as likely as not (at least a 50 percent probability) that hypertension was manifest to a compensable degree, with evidence showing diastolic pressure predominantly 100 or more; or systolic pressure predominantly 160 or more; or a history of diastolic pressure predominantly 100 or more which requires continuous medication to control, within one year of separation from service, by November 2005,  considering the Veteran's lay assertions as to symptoms, elevated blood pressure, and his clinical post-service treatment records.

(c) The examiner should opine as to whether it is at least as likely as not (at least a 50 percent probability) that the symptoms of hypertension existed continuously since from the time of separation from service in November 2004 to the present, considering the Veteran's lay assertions as to symptoms, elevated blood pressure, and his clinical post-service treatment records.

(d) For the Veteran's hypothyroidism, the examiner should opine as to whether it is at least as likely as not (at least a 50 percent probability) that such was incurred in active service, considering the Veteran's lay assertions, and those of his spouse, that he had weight loss and/or gain and black eyes upon return from service in Iraq, and his assertions that he had laboratory findings during service indicative of hypothyroidism.

The claims file, to include a copy of this remand, should be made available to the examiner(s) for review in conjunction with the examination(s), and the examiner(s) should note such review.  A complete rationale should be provided for all opinions given. The opinions should be based on examination findings, historical records, and medical principles.  If the requested opinions cannot be provided without resorting to mere speculation, the examiner(s) should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice.

3. Then, after ensuring any other necessary development has been completed; readjudicate the Veteran's claims considering any additional evidence added to the record.  If any action remains adverse to the Veteran, provide him and his representative with a Supplemental Statement of the Case (SSOC) and allow him an appropriate opportunity to respond thereto.  Thereafter, return the case to the Board.

The appellant has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012).




______________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs