Citation Nr: 18144929 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 18-27 343 DATE: October 25, 2018 ORDER The claim of entitlement to service connection for hypertension is reopened. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a skin condition is remanded. Whether new and material evidence has been received to reopen a previously denied claim of service connection for post-traumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT VA has received previously unconsidered evidence since a final June 2012 rating decision that denied service connection for a high blood pressure that relates to the basis for the prior denial and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received to reopen the service connection claim for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 to April 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from September 2014 and January 2018 rating decisions. A June 2012 rating decision initially denied the Veteran’s service connection claim for high blood pressure due to Agent Orange exposure. The Veteran did not file a notice of disagreement, and VA did not receive additional evidence regarding the claims within one year of notice of the decision. Thus, the June 2012 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302. A September 2014 rating decision denied the Veteran’s initial attempt to reopen the claim. The Veteran did not file a timely notice of disagreement regarding the September 2014 rating decision, but the Agency of Original Jurisdiction (AOJ) determined that the rating decision failed to address medical evidence submitted by the Veteran prior to the decision. As such, the September 2014 rating decision is not final with respect to the issues of service connection for hypertension and a skin disorder. The AOJ subsequently issued the January 2018 rating decision to consider this additional evidence; however, the RO confirmed and continued the previous denial of service connection for high blood pressure because the evidence submitted was not new and material; and, denied service connection for a skin condition. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as existing evidence not previously submitted to the VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. The United States Court of Appeals for Veterans Claims (Court) has held the phrase “raises a reasonable possibility of establishing the claim” must be viewed as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Court emphasized that 38 C.F.R. § 3.156 “does not require new and material evidence as to each previously unproven element of a claim.” Id. at 120. The Court further explained the provisions of 38 C.F.R. § 3.156(a) create a “low threshold” for finding new and material evidence that is favorable to the claimant. Id. A determination of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider an underlying claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Therefore, regardless of the AOJ’s action, the Board must address the question of whether new and material evidence has been presented to reopen a claim of service connection. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, recently submitted evidence is presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam). Here, the record includes several new pieces of evidence that support the Veteran’s claim, most notably a private opinion from physician C.E.M.Q. asserting several medical conditions, including hypertension, are the result of the Veteran’s military service. The private opinion raises a reasonable possibility of establishing the Veteran’s service connection claim because it suggests that the Veteran’s hypertension is related to service, or to another disability purported to be service-connected. This is a previously unestablished element of the claim. Thus, the Board finds new and material evidence has been received to reopen the service connection claim for hypertension, and reopening of the claim is warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND The Board cannot make a fully-informed decision on the issue of entitlement to service connection for hypertension because no VA examiner has opined whether the Veteran’s current diagnosis of hypertensive heart disease is at least as likely as not the result of the Veteran’s service, to include his presumed exposure to herbicide agents in Vietnam. The January 2018 VA examination diagnosed the Veteran with hypertensive heart disease but provided no opinion on whether the Veteran’s condition was related to his service. A private opinion from physician C.E.M.Q. asserts that this condition is one of several that the Veteran currently has as a result of military service, but this opinion does not provide adequate supporting rationale for the Board to reach a decision. Regarding the claims of entitlement to service connection for a skin condition and whether new and material evidence has been received to reopen a previously denied claim of service connection for PTSD, the Veteran submitted a timely notice of disagreement with the January 2018 rating decision stating he wanted to appeal all denied claims, but a statement of the case has not yet been issued with respect to those issues. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s hypertension. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including exposure to herbicide agents in Vietnam. The examiner’s opinion should address the Veteran’s lay statements indicating high blood pressure since service and medical evidence in the Veteran’s file, including the December 2017 private medical opinion from C.E.M.Q. The examiner must also opine whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. 2. Send the Veteran and his representative a statement of the case that addresses the issues of entitlement to service connection for a skin condition and whether new and material evidence has been received to reopen a previously denied claim of service connection for PTSD. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Pitman, Associate Counsel