Citation Nr: 1803663 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 16-59 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a low back disorder, and if so, whether service connection is warranted. 2. Entitlement to service connection for hypertension (HTN), to include as secondary to heart disease and exposure to herbicide agents. 3. Entitlement to service connection for heart disease, to include as secondary to HTN and exposure to herbicide agents. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jane R. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1953 to October 1957, and from August 1959 to August 1964. This appeal is before the Board of Veterans' Appeals (Board) from April 2014 and January 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The April 2014 rating decision denied service connection for HTN and heart disease secondary to HTN. The January 2016 rating decision declined to reopen the low back disorder service connection claim due to the lack of new and material evidence. In January 2016, the RO also increased the right ankle disability rating to 10 percent, effective October 27, 2015. The Veteran submitted a timely Notice of Disagreement (NOD), and a December 2016 Statement of the Case (SOC) was issued. The Veteran's December 2016 VA Form 9 specifically only included his low back claim. As such, the right ankle issue is not on appeal and not currently before the Board. The Veteran testified before the undersigned Veterans Law Judge at an October 2017 videoconference hearing, and a transcript of this hearing is of record. The Veterans Law Judge granted the Veteran's motion to advance this appeal on the Board's docket at the hearing pursuant to 38 U.S.C. § 7017(a)(2)(C) (2012) and 38 C.F.R. § 20.900(c) (2017). The issues of entitlement to service connection for a left ankle disorder, prostate cancer residuals, and hearing loss are pending with the RO and not currently before the Board. The issues of service connection for HTN and heart disease are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An unappealed April 2014 rating decision is the last final decision that denied service connection for a low back disorder, specifically low back pain. 2. The evidence received since the final April 2014 rating decision is not new and material, and the service connection claim for a low back disorder is not reopened. CONCLUSIONS OF LAW 1. The April 2014 rating decision denying service connection for a low back disorder is final. 38 U.S.C. §§ 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.160(d), 20.302, 20.1103 (2017). 2. The evidence received since the April 2014 rating decision is not new and material, and the criteria to reopen the service connection claim for a low back disorder are not met. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. §§ 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matter In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Petition to Reopen Previously Denied Service Connection Claim Rating decisions are final and binding based on evidence on file at the time the claimant 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). The claimant has one year from notification of a RO decision to initiate an appeal by filing a NOD with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. §7105; 38 C.F.R. §§ 3.160, 20.201, 20.302 (2017). If the Board issues a decision on appeal, confirming the RO's decision, then the Board's decision subsumes the RO's decision on the same issue at hand. 38 C.F.R. § 20.1104. Moreover, if the Board's decision is not timely appealed, then it, too, is final and binding based on the evidence then of record. 38 C.F.R. § 20.1100. It is the Board's jurisdictional responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Regarding applications for reopening, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 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). 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 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In order to reopen a claim, it is not necessary that new and material evidence be received regarding each previously unproven element of a claim. Indeed, newly submitted evidence need not be overwhelming as a "low threshold" standard is applied. See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The Board will summarize the relevant evidence. The Veteran filed an original service connection claim for a low back disorder in May 2013, and the RO denied such claim in April 2014. The Veteran did not appeal this rating decision; nor was new and material evidence received within a year of notification of the rating decision. 38 C.F.R. § 3.156(b). Therefore, the rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104(a). Thereafter, in November 2015, the Veteran petitioned to reopen the previously denied low back claim. In a January 2016 rating decision, the RO declined to reopen the claim, finding that new and material evidence had not been received. The Veteran subsequently submitted a timely VA Form 9 after the issuance of the SOC, and the instant appeal ensued. Accordingly, based on the procedural history as reflected above, the April 2014 rating decision is the last final decision denying the Veteran's low back disorder claim. After a review of all the evidence, the Board finds that the evidence received subsequent to the last final decision dated in April 2014, which denied service connection for a low back disorder, is cumulative and, when considered with evidence earlier of record, does not relate to the unestablished elements of an in-service injury or nexus that are necessary to substantiate the claim. In this regard, evidence received subsequent to the last final decision includes various statements from the Veteran, a Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ), and an October 2017 hearing transcript. The additionally received, non-duplicative evidence is new, but it is not material as the statements, Back DBQ, and hearing transcript do not reflect any indication of a nexus to active duty service. The Board notes that the Veteran reported an in-service back injury and heavy lifting and bending during service. While the in-service back injury was not previously reported and is actually contradictory to his previous statements denying any trauma or fall during service, the April 2014 VA examiner reviewed the Veteran's claims file, including his service treatment records (STRs), and considered the Veteran's statements regarding continuous low back pain since service and his belief that the back pain may be related to cumulative stress as an electrician during service. The Back DBQ completed by Dr. K.R. reflects back diagnoses but does not provide any nexus opinion. The hearing transcript also refers to his claimed continuous back pain since service and his work as an electrician, which was already considered by the RO in April 2014. The Board concludes that the additional evidence received since the final decision does not constitute new and material evidence upon which the claim may be reopened. For these reasons, the Board finds that new and material evidence has not been received to reopen service connection for a low back disorder, and the claim is not reopened. ORDER New and material evidence has not been received, the claim for entitlement to service connection for a low back disorder is not reopened. REMAND Remand is necessary for further evidentiary development. Regarding the claims for service connection for HTN and heart disease, the Veteran contends that his current HTN and heart disease are related to his in-service exposure to herbicide agents or contaminated water at Camp LeJeune. Although there is a November 2016 formal finding on a lack of information required to corroborate herbicide agent exposure, the Veteran was not afforded a VA examination in order to determine whether his current HTN or heart disease is related to service, to include any claimed exposure to herbicide agents or contaminated water. This should be accomplished on remand. The Board also notes that the Veteran contends that his HTN is secondary to his heart disease, which is not yet service-connected. Additionally, the Veteran had initially contended that his heart disease was secondary to his HTN, which is not yet service-connected. Accordingly, the case is REMANDED for the following action: (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. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Then, provide the Veteran with a VA examination to determine the nature and etiology of his claimed HTN. All test and studies deemed necessary shall be performed. The examiner should be provided with the Veteran's claims file, including a copy of this remand. Although a complete review of the record is imperative, attention is called to the following: *The Veteran's STRs reflecting his blood pressure readings during active duty service and active duty training (ACDUTRA) and the Veteran's continuous denials of high blood pressure. *The Veteran's military personnel records, which include his enlisted performance records reflecting that he was stationed on the USS Point Defiance (LSD-31) in May and November 1960; May and November 1961; January, May, and November 1962; and May 1963. *An October 1989 STR noting the Veteran's elevated blood pressure at his July1989 physical examination and instructing him to include a physician's evaluation of his blood pressure if his readings continued to be elevated. *A March 1996 annual medical certificate noting that the Veteran was prescribed blood pressure pills. *Private treatment records from September 2011 assessing the Veteran with controlled HTN, from July 2012 assessing him with mild pulmonary HTN, and from March 2013 assessing him with uncontrolled HTN. *In his May 2013 claims application, the Veteran reported that his HTN began in December 1989 and claimed exposure to herbicide agents. *An October 2013 HTN DBQ completed by Dr. K.R., reflecting a diagnosis of uncontrolled HTN, but no nexus opinion. *A July 2014 statement in which the Veteran contended that he was stationed as an electrician on a ship anchored in Da Nang Harbor and carrying Marines, and that his Special Operations assignment was classified but that he was on board the ship from about 1959 until 1964. *A January 2016 private treatment record assessing the Veteran with essential (primary) HTN. *A November 2016 Formal Finding on a lack of information required to corroborate herbicide agent exposure connection to service in the Republic of Vietnam. *A January 2017 statement where the Veteran stated that he was treated for HTN during service due to his high blood pressure readings. *The October 2017 videoconference hearing transcript where the Veteran testified that he had problems with HTN during service, and contended that he was exposed to contaminated water at Camp LeJeune and exposed to herbicide agents. After reviewing the claims file and examining the Veteran, the examiner is asked to address the following: a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed HTN had an onset during the Veteran's active service, manifested within one year of separation from service, or was caused by or related to his active duty service, to include exposure to herbicide agents. b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed HTN resulted from disease or injury incurred or aggravated while performing ACDUTRA, to include exposure to contaminated water at Camp LeJeune. All opinions are to be accompanied by a rationale consistent with the evidence of record. 3. Provide the Veteran with a VA examination to determine the nature and etiology of his claimed heart disease. All test and studies deemed necessary shall be performed. The examiner should be provided with the Veteran's claims file, including a copy of this remand. Although a complete review of the record is imperative, attention is called to the following: *The Veteran's STRs reflecting normal clinical evaluations of the heart and the Veteran's continuous denials of palpitation or pounding heart and pain or pressure in the chest. *The Veteran's military personnel records, which include his enlisted performance records reflecting that he was stationed on the USS Point Defiance (LSD-31) in May and November 1960; May and November 1961; January, May, and November 1962; and May 1963. *Private treatment records from September 2011 to July 2012 evaluating and assessing the Veteran with a heart disease, specifically coronary artery disease (CAD) and aortic stenosis. *In his May 2013 claims application, the Veteran reported heart disease secondary to HTN since December 1989 and claimed exposure to herbicide agents. *An October 2013 Ischemic Heart Disease DBQ completed by Dr. K.R., reflecting a diagnoses of CAD, carotid stenosis, percutaneous transluminal coronary angioplasty (PTCA), and aortic stenosis; but no nexus opinion. *A November 2013 statement in which the Veteran noted that his "heart and other issues" required surgery for multiple stent insertions in his neck and heart due to his heart disease associated with Agent Orange, stated that he was on the USS Point Defiance when it was on the Mekong River, and contended that exposure to herbicide agents is presumed and thus service-connection to heart disease is presumed. *A July 2014 statement in which the Veteran contended that he was stationed as an electrician on a ship anchored in Da Nang Harbor and carrying Marines, and that his Special Operations assignment was classified but that he was on board the ship from about 1959 until 1964. *His April 2015 NOD where the Veteran contended that his heart disease claim should not be regarded only as secondary to his HTN, but considered based on direct service connection based on presumptions based on exposure to herbicide agents. *A November 2016 Formal Finding on a lack of information required to corroborate herbicide agent exposure connection to service in the Republic of Vietnam. *The October 2017 videoconference hearing transcript where the Veteran testified that he probably had heart problems prior to enlistment, stated that he had heart pains during service in the Air Force, and contended that he was exposed to contaminated water at Camp LeJeune and exposed to herbicide agents. After reviewing the claims file and examining the Veteran, the examiner is asked to address the following: a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed heart disease had an onset during the Veteran's active service, manifested within one year of separation from service, or was caused by or related to his active duty service, to include exposure to herbicide agents. b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed heart disease resulted from disease or injury incurred or aggravated while performing ACDUTRA, to include exposure to contaminated water at Camp LeJeune. All opinions are to be accompanied by a rationale consistent with the evidence of record. 4. After determining whether any additional development is necessary, readjudicate the Veteran's claims for service connection for HTN and heart disease. If the benefits sought on appeal are not granted, the Veteran should be provided a Supplemental Statement of the Case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran 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). ______________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs