Citation Nr: 18148179 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-53 527A DATE: November 7, 2018 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for hypertension, to include as secondary to diabetes mellitus. The appeal is granted to that extent only. New and material evidence has been received to reopen the claim of entitlement to service connection for cerebrovascular accident (CVA) residuals. The appeal is granted to that extent only. REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, is remanded. Entitlement to service connection for CVA residuals is remanded. FINDINGS OF FACT 1. By a September 2008 rating decision, the Veteran’s claims of entitlement to service connection for hypertension and CVA residuals were denied. That decision was not appealed and became final at the one-year mark. 2. Additional evidence has been received, which is not cumulative or redundant of the evidence of record at the time of the September 2008 rating decision and relates to an unestablished fact necessary to substantiate the claims for service connection. CONCLUSIONS OF LAW 1. The September 2008 rating decision denying service connection for hypertension and CVA residuals is final. 38 U.S.C. §§ 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. New and material evidence had been received to reopen the claims of entitlement to service connection for hypertension and CVA residuals and the claims are reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from February 1968 to February 1970. These issues comes before the Board of Veterans’ Appeals (Board) from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), located in Houston, Texas. In May 2018, the Veteran testified at a Board hearing. The transcript is of record. I. VA’s Duty to Notify and Assist The VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A and 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The duty to notify has been met. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. In light of the foregoing, nothing more is required. The VA also has a duty to assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim, 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). The record reflects that all available records pertinent to the claim have been obtained. The Veteran has not identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claims. II. New and Material Evidence A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). The language of 38 C.F.R. § 3.156 (a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board notes that the RO reopened the Veteran’s service connection claims for hypertension and CVA residuals in its November 2016 Statement of the Case. However, the Board is required to make its own determination to reopen a claim based on new and material evidence. See Barnett v. Brown, 83 F.3d 1380, 1385 (Fed. Cir. 1996). In December 2007, the Veteran submitted claims of entitlement to service connection for hypertension and residuals of a stroke. In a September 2008 rating decision, the claims were denied. The RO found that there was no evidence of hypertension during active duty or within one year of discharge. The CVA residuals claim was denied as the condition was found not to be present during active duty nor caused by active duty. The RO also found that there was no evidence of the CVA residuals being associated with a service connected condition. The Veteran did not appeal that decision, which became final at the one-year mark. 38 U.S.C. §§ 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). The Veteran submitted another claim of entitlement to service connection for hypertension and residuals of a stroke in February 2010. The evidence received since the time of the September 2008 decision includes the Veteran’s testimony that his hypertension symptoms were being treated in-service, that he passed out during field duty as a result, and that his post-service CVA was due to his hypertension that was aggravated in-service. This evidence is new and material as it provides some evidence that the Veteran experienced hypertension related symptoms while in-service and that his service aggravated hypertension caused the Veteran to suffer a CVA. These are previously unsubstantiated facts that are necessary to substantiate the claims. Therefore, the claims are reopened. REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, is remanded. The Veteran contends that his current hypertension disability was incurred in, caused or aggravated by his military service. He also argues that his hypertension was aggravated by service connected diabetes mellitus. At the time of his 2018 hearing, he alleged that he had hypertension prior to active duty and it was aggravated by active duty. During the pending of this appeal, the Veteran was found to be service-connected for diabetes mellitus. A September 2015 VA examination report indicated that the examiner found that the Veteran did not have any conditions due to diabetes mellitus to include hypertension. It was also indicated that the diabetes mellitus did not permanently aggravate hypertension. The VA examiner did not give any explanation or rationale for these opinions. No opinion was provided on direct service connection for hypertension. The enlistment examination includes a blood pressure reading of 110/60. The Veteran indicated in February 1968 that he never had abnormal blood pressure. The Board notes that a clinical record dated in July 1968 includes a blood pressure reading of 116/110 which appears to be elevated. Blood pressure was recorded as 130/88 at the time of the discharge examination. The Veteran's blood pressure increased from the time of entrance until his discharge. The VA has a duty to assist Veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist including providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159(c)(4). While the Veteran was given a VA examination, the Board finds that this examination was inadequate based on the VA examiner’s lack of supporting rationale for his opinion. The opinion also did not address direct service connection for the hypertension. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A remand is required to obtain addendum opinion which provides a rationale to support the negative etiology opinion. 2. Entitlement to service connection for CVA residuals is remanded. The Veteran also contends that his current CVA disability was caused or aggravated by his hypertension, which was caused or aggravated by his military service. He also alleges that the residuals of the CVA were the result of service connected diabetes mellitus aggravating his hypertension. Medical evidence references the Veteran having a stroke in March 1996. The Veteran was not provided with a VA examination which addresses the question of whether he has residuals of a CVA which was due to active duty service or secondary to service connected diabetes mellitus. The Veteran has also alleged that his CVA residuals were secondary to his hypertension which is being remanded above. The claims are inextricably intertwined. A VA examination is required to address the Veteran's claims. The matters are REMANDED for the following action: 1. Obtain updated VA and/or private treatment records to the extent possible. If such records are unavailable, the Veteran’s claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. When the above action has been accomplished, provide the Veteran an appropriate examination to determine the nature and extent of his hypertension disability. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. The examiner is requested to provide opinions as to the following: (a) whether it is at least likely as not that the Veteran’s hypertension is causally or etiologically related to the Veteran’s active duty service; or (b) whether it is least likely as not that the Veteran’s hypertension is proximately due to his service-connected diabetes mellitus; (c) If the answer to (b) is negative, whether it is at least as likely as not that the Veteran’s hypertension has permanently worsened (aggravated) due to the Veteran’s service-connected diabetes mellitus. A complete rationale must be provided for all opinions presented. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Provide the Veteran an appropriate examination to determine the nature and extent of his CVA residuals disability. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. The examiner is requested to provide opinions as to the following: (a) whether it is at least likely as not that the Veteran’s CVA residuals is causally or etiologically related to the Veteran’s active duty service; (b) whether it is least likely as not that the Veteran’s CVA residuals is proximately due to his service-connected diabetes mellitus; (c) if the answer to (b) is negative, whether it is at least as likely as not that the Veteran’s CVA residuals has permanently worsened (aggravated) due to the Veteran’s service-connected diabetes mellitus; (d) whether it is at least as likely as not that the Veteran has CVA residuals which are etiologically linked to hypertension. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. For the purposes of secondary service connection, the examiner is advised that aggravation is defined as “any increase in disability.” See Allen v. Brown, 7 Vet. App. 439, 448 (1995). A complete rationale must be provided for all opinions presented. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Massey, Associate Counsel