Citation Nr: 18141661 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 05-06 797 DATE: October 11, 2018 ORDER The petition to reopen the claim of entitlement to service connection for hypertension is granted. The petition to reopen the claim of entitlement to service connection for a heart disorder is denied. REMANDED ISSUE Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. An unappealed September 2006 rating decision denied service connection for hypertension; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. 2. An unappealed September 2006 rating decision denied service connection for heart disorder; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claim. CONCLUSIONS OF LAW 1. The September rating decision denying the claim for service connection for hypertension is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. 2. The September rating decision denying the claim for service connection for heart disorder is final; and new and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1966 to August 1974. He died in May 2016. The Appellant is his surviving spouse. The originating agency granted her request for substitution as claimant. See Correspondence (September 2016). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In August 2017, the Board remanded these matters for a Statement of the Case (SOC). Thereafter, the AOJ issued a SOC in September 2017, and the Appellant submitted a substantive appeal in November 2017. At that time, the Appellant indicated that she wanted a hearing before the Board; however, she withdrew her request for a Board hearing in December 2017. As such, these issues are properly before the Board for consideration. In August 2017, the Board had also remanded the issue of whether any remaining withholding of compensation benefits during the time period of the Veteran’s incarceration was proper. This issue was remanded to allow for the AOJ to issue a SOC. Thereafter, in an August 2018 letter, the Appellant was notified that she was being awarded $41,535.83 for accrued benefits of withholding of compensation benefits during the period of the Veteran’s incarceration from January 1, 1991 to December 31, 2005. The Appellant was also notified that this decision represented a full grant of the benefits sought on appeal. Thus, as this issue has been granted in full and the Appellant has not expressed disagreement, it is no longer on appeal and is not currently before the Board. 1. Whether new and material evidence has been presented to reopen the previously denied claim for service connection for hypertension. 2. Whether new and material evidence has been presented to reopen the previously denied claim for service connection for heart disorder. The RO denied the claims for service connection for hypertension and heart disorder in a September 2006 rating decision because there was no indication that the Veteran’s hypertension disability was related to service or to a service-connected disability. Further, the RO found that the Veteran did not have a diagnosed heart disability. The Veteran was notified of the rating decision and how to appeal. VA did not receive an appeal or new and material evidence prior to expiration of the appeal period. As such, the September 2006 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A claim that has been denied in an unappealed Regional Office (RO) decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). In establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Regarding the claim for hypertension, newly submitted evidence following the September 2006 rating decision includes a September 2009 medical opinion from Dr. Kinkaid (a VA physician), which indicated that the Veteran’s hypertension “results from, or is aggravated by the s service-connected condition diabetes mellitus.” The Board finds that this evidence is new and material within the meaning of applicable law and regulations because it is probative of the issue at hand. The medical opinion was not of record prior to the issuance of the September 2006 rating decision. Moreover, the medical opinion is material as it relates to an unestablished element of the claim. Accordingly, the Board finds that the newly added evidence relates to an unestablished fact necessary to substantiate the Veteran’s claim of service connection for hypertension. 38 C.F.R. § 3.156 (a). As such, the petition to reopen the previously denied claim for service connection for hypertension is granted. As for heart disorder, the September 2006 rating decision denied this claim because the Veteran had not been diagnosed with a heart disorder. The evidentiary submissions since the last prior final denial do not cure this evidentiary defect. A review of the record since the September 2006 rating decision includes VA treatment records dated from October 2006 to May 2016. These records show diagnoses of hypertension, diabetes, hyperplasia of the prostate, neuropathy, and PTSD; however, the Veteran had not been diagnosed with heart disability. The Veteran’s death certificate further indicates that he died due to a malignant liver tumor with bone metastasis. VA treatment records include a March 2011 stress test which showed “no significant evidence of reversible ischemia” and normal left ventricular (LV) systolic function. In a January 2014 VA cardiology note, the Veteran complained of intermittent chest discomfort; however, a diagnostic testing was “negative for ischemia.” In April 2015 and September 2015 VA treatment notes, the Veteran denied heart problems or chest pain. Similarly, the remaining evidence of record received since the September 2006 rating decision shows no diagnosed heart disorder prior to his death. Therefore, as new and material evidence has not been received, the petition to reopen is denied. REASONS FOR REMAND 3. Entitlement to service connection for hypertension. The Appellant contends that the Veteran’s hypertension was related to his service-connected diabetes or in-service herbicide exposure. VA conceded the Veteran’s exposure to herbicides based on his active duty service in the Republic of Vietnam. Also, VA granted service connection for diabetes as due to herbicide exposure in a July 2002 rating decision. A July 2006 VA examination confirmed a diagnosis of hypertension. The examiner stated that, although hypertension was not a complication of his diabetes, the Veteran’s hypertension had worsened or increased in severity due to his service-connected diabetes. In support of this opinion, the examiner stated that “diabetes accelerates arteriosclerosis increasing vascular resistance therefore it is more likely than not that diabetes will aggravate the condition of HTN.” The Board finds that this medical opinion has limited probative value as it does not identify any manifestations of increased disability attributable to diabetes that are not the due to the natural progression of the disease in the Veteran’s case; also, although he reported that diabetes accelerates arteriosclerosis, he does not explain why he believes this occurred in the Veteran’s case or identify any abnormal pathology in the Veteran’s case that supports the cause-effect relationship postulated. A September 2009 opinion from the Veteran’s treating VA physician, Dr. Kinkaid reflects that “more than likely as not” that the Veteran’s hypertension resulted from, or was aggravated by the service-connected diabetes disability.” In support thereof, he referenced the Merck Manual (17th Edition), which indicated that “both insulin dependent and non-insulin dependent diabetes mellitus are associated with earlier and more extensive development of arthrosclerosis.” He also noted, per the Merck Manual, that “hyperinsulinemia damages the vascular endothelium” and that “…dysfunction of the endothelium could have a profound effect on BP [blood pressure].” The Board finds that this medical opinion has limited probative value because, while it seems to establish theoretical aggravation of hypertension by diabetes, it does not discuss or explain with any actual aggravation in the Veteran. In this regard, he did not identify any specific medical findings or history pertaining to the Veteran that support aggravation in the Veteran’s case. Also, he did not identify any baseline level of disability prior to aggravation or comparison of the disability prior to and after aggravation. The physician relied wholly upon excerpts from the Merck Manual to back up his favorable conclusion and did not support the conclusion reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25; Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (medical report must contain clear conclusions with supporting data and a reasoned medical explanation connecting the two). A May 2013 VA examination addressed the question of secondary service connection and concluded that hypertension was less likely than not proximately due to or the result of service-connected diabetes. The examiner stated: Although it is not clear when the HNT started, whether before or after the onset of DM what is clear from the documented information available is that the Veteran did not have diabetic nephropathy or microalbuminuria at the time he was treated for hypertension. All relevant lab values were cited in the previous C&P exams and did not show nephropathy. HTN and DM are frequent co-morbidities, but Primary Essential Hypertension is just that, a de novo condition, and in the absence of renal dysfunction caused by DM, it cannot be stated that HTN was caused by DM. The examiner further addressed the July 2006 VA medical opinion that, because DM accelerates arteriosclerosis, it can aggravate hypertension. As to the question of aggravation, he explained that it was not possible to establish a baseline of the hypertension prior to the aggravation as there was not enough information about the Veteran’s hypertension at the time of diagnosis. Moreover, he concluded that there was no aggravation of hypertension by diabetes in this case and that, while aggravation is theoretically possible, the medical findings, such as the absence of renal dysfunction, did not support the theory of aggravation. The examiner acknowledged that the Veteran had microalbuminuria, but explained that this could be due to hypertension as well as diabetes and, short of autopsy slides, the exact cause of the albuminuria could not be determined. Notwithstanding, he believed that albuminuria was “most probably” from “concurrent diseases, not necessarily aggravation.” While this medical opinion addressed the theory of aggravation, it did not address the question of whether hypertension is due to herbicide exposure in service. In view of the above, the Board finds that a supplemental medical opinion is necessary because a medical opinion has not been obtained on the question of whether hypertension is as likely as not due to herbicide exposure. The Board notes that hypertension is not one of the presumptive conditions listed in 38 C.F.R. § 3.309(e). However, service connection maybe established on a direct basis and that, prior to 2006, the National Academy of Sciences (NAS) placed hypertension in the “Inadequate or Insufficient Evidence” category. However, in its Update 2006, 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 (Apr. 11, 2014). Update 2012 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. Accordingly, the matter is REMANDED for the following action: 1. Obtain a supplemental medical opinion from an appropriate clinician. After review of the record, provide an opinion on the following: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the deceased Veteran's hypertension was related to his active duty military service, to include VA conceded exposure to herbicides? i. Consider and discuss NAS's Update 2012, which reflects that NAS has placed hypertension in the category of limited or suggestive evidence, which means 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." ii. The clinician’s rationale may not rely solely on the fact that VA has not included hypertension in the list of presumptive conditions. iii. The clinician may not predicate a negative opinion solely on the absence of in-service treatment or diagnosis for hypertension. (b.) Is it at least as likely as not (a 50 percent or greater probability) that hypertension manifested within one year after service? If so, please describe the manifestations. (c.) Is it at least as likely as not that hypertension was proximately due to service-connected diabetes or aggravated beyond its natural progression by service-connected diabetes? If the clinician believes that there was aggravation beyond normal progression, then he/she must identify the medical findings that support that conclusion and indicate the manifestations prior to and after aggravation. Consider the previous medical opinions of record addressing aggravation. A complete rationale for the medical opinion is required. The clinician should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If an opinion cannot be expressed without resort to speculation, the clinician should so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Casadei, Counsel