Citation Nr: 18145041 Decision Date: 10/26/18 Archive Date: 10/25/18 DOCKET NO. 16-24 243 DATE: October 26, 2018 ORDER The previously denied claim of entitlement to service connection for hypertension is reopened. REMANDED Entitlement to service connection for hypertension, to include as secondary to herbicide exposure, is remanded. FINDINGS OF FACT 1. A final AOJ rating decision dated September 2000 denied service connection for hypertension. 2. The evidence received since the prior denial relates to unestablished facts and raises a reasonable possibility of substantiating the claim for service connection for the issue of entitlement to service connection for hypertension. CONCLUSION OF LAW Following the prior final denial of September 2000, new and material evidence has been presented to reopen the claim of entitlement to service connection for hypertension. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017)]. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1968 to April 1971, and served in the Republic of Vietnam. The Veteran initially requested a hearing before the Board in his April 2016 substantive appeal. VA’s Veterans Appeals Control and Locator System (VACOLS), which is an automated database for tracking appeals, reflects that the Veteran withdrew his request for a hearing. Therefore, the Board considers the hearing request withdrawn. 38 C.F.R. § 20.702 (2017). New and material evidence has been submitted and the claim of service connection for hypertension is reopened. If a claim of entitlement to service connection is denied by an AOJ decision and no notice of disagreement or additional evidence is filed within one year, that decision becomes final and generally cannot be reopened or allowed. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Once that decision becomes final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Evidence is new and material if it: (1) has not been previously submitted to agency decision-makers; (2) by itself or in connection with evidence previously included in the record, relates to an unestablished fact necessary to substantiate the claim; (3) is neither cumulative nor redundant of evidence already of record at the time the last prior final denial of the claim sought to be opened; and (4) raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). Further, the threshold for raising a reasonable possibility of substantiating the claim is low. Shade, 24 Vet. App. at 117. Evidence may be considered new and material if it contributes “to a more complete picture of the circumstances surrounding the origin of a Veteran’s injury or disability, even where it will not eventually convince the Board to alter its rating decision.” Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). For the purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the evidence submitted since the last final AOJ or Board decision will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). However, the benefit of the doubt doctrine does not apply to a new and material analysis. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). In general, service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active service. 38 U.S.C. § 1110. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In September 2000, the AOJ denied entitlement to service connection for hypertension on the basis of no submission of new and material evidence. The AOJ previously denied the claim for hypertension in an April 1994 rating decision on the basis of no evidence of hypertension within one year of service, and initially denied the claim in a June 1986 rating decision on the basis of no nexus to service. The evidence of record at the time of the September 2000 rating decision included private medical records reflecting treatment for hypertension, but no opinion regarding etiology. See, e.g., January 1989 and March 1986 Private Medical Records. By letter dated October 2000, the Veteran was notified of this decision. However, the Veteran did not appeal or submit new and material evidence within the one-year appeal period after notice of the decision was provided. Hence, that decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. The evidence received since the September 2000 decision includes a previously unconsidered Veteran statement containing evidence reflecting the onset of the disorder. See April 2016 Substantive Appeal. This evidence relates to an unestablished fact needed to establish service connection (i.e., nexus/chronicity and continuity). Therefore, the Board finds that new and material evidence has been received and the criteria to reopen the Veteran’s claim of service connection for hypertension are met. REASONS FOR REMAND Entitlement to service connection for hypertension, to include as secondary to herbicide exposure, is remanded. An August 1999 letter from the Social Security Administration (SSA) indicates that the Veteran became disabled for SSA purposes in July 1998. On remand, the AOJ should attempt to obtain any existing SSA records used to determine that the Veteran is disabled. The Veteran underwent a November 2010 VA examination to evaluate diabetes mellitus and associated symptoms. The examiner opined that hypertension was not the result of diabetes mellitus, as it predated diabetes mellitus. No VA examiner has opined as to whether hypertension is etiologically related to service, to include as secondary to presumed herbicide exposure, and to include whether hypertension manifested within a year of service. VA is obligated to provide a medical examination when the record contains competent evidence that a claimant has a current disability or symptoms of a current disability, the record indicates that a current disability or symptoms of a current disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). See also 38 C.F.R. § 3.159(c)(4). The matter is REMANDED for the following action: 1. Obtain VA treatment records since July 2016 and associate them with the claims file. 2. Request from SSA copies of documents, including medical records and any decisions, issued in connection with the Veteran’s claim for benefits. All attempts to obtain records should be documented in the claims folder. 3. After any additional documents are obtained and associated with the electronic claims file, schedule the Veteran for a VA examination by an appropriate examiner to determine the nature and etiology of any diagnosed hypertension. The examiner must review the Veteran’s Legacy Content Manager and VBMS files. The examiner should indicate in the opinion that all pertinent records were reviewed. All clinical findings must be reported in detail and correlated to a specific diagnosis. Following the examination, the examiner should provide an answer for the following questions: (a) Is it at least as likely as not (50 percent or greater possibility) that any currently diagnosed hypertension had its onset in service or within a year of service, or is etiologically related to or aggravated by service, to include due to exposure to herbicide? The examiner should note that, for rating purposes, the Veteran’s exposure to herbicides is conceded. The examiner should address the Veteran’s April 2016 statement that he was denied a job in 1971 (within a year of service) because the entrance physical examination reflected high blood pressure. The examiner should note that the examination records are unavailable. The examiner should note treatment records for hypertension including the following: • the Veteran’s January 1971 separation examination; • VA treatment records from the 1980’s reflecting some blood pressure readings in the ranges of 140/90 to 145/95 (see, e.g., June 1981 and February 1982 VA Treatment records); • Private medical records reflecting treatment for hypertension (see, e.g., January 1989 and February 1986 Private Medical Records); and • January 1989 VA report of hospitalization reflecting a blood pressure reading of 160/104. (b) Is it at least as likely as not (50 percent or greater possibility) that any of the Veteran’s service-connected disorders aggravated (i.e., caused an increase in severity of) the Veteran’s hypertension? The examiner should note the following: • the Veteran is service-connected for ischemic heart disease; restrictive lung disease; posttraumatic stress disorder; residuals of a left ankle injury; diabetes mellitus; and a chest scar; • A November 2010 VA examiner’s opinion that diabetes mellitus did not cause hypertension as hypertension predated diabetes mellitus; and • that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. A complete rationale for all opinions expressed must be provided. (Continued on the following page) 4. After completing the actions detailed above, readjudicate the claim remaining on appeal. If the benefit is not granted in full, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Howell, Associate Counsel