Citation Nr: 18148291 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-35 426 DATE: November 7, 2018 ORDER New and material evidence having been submitted, the claim for service connection for hypertension is reopened. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to a total disability rating based on individual unemployability for service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In a February 2008 rating decision, the Regional Office (RO) denied service connection for hypertension. The Veteran was notified of that decision and of his appellate rights, but he did not appeal or submit new and material evidence within the one-year period thereafter. 2. The evidence received since the February 2008 rating decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim for service connection for hypertension. CONCLUSIONS OF LAW 1. The February 2008 rating decision that denied the Veteran’s claim for service connection for hypertension is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The evidence received since the February 2008 rating decision is new and material, and the claim for service connection for hypertension is reopened. 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 February 1968 to March 1970, from October 1970 to February 1974, and from April 1977 to August 1977. In an October 2012 administrative decision, the Department of Veterans Affairs (VA) determined that his period of service from March 4, 1971, to February 13, 1973, was dishonorable and was a bar to VA benefits under 38 C.F.R. § 3.12 (d). This case comes before the Board on appeal from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran submitted a statement in November 2014 indicating that he wanted to withdraw the appeal for the issue of entitlement to service connection for hypertension. However, the RO continued to adjudicate and list the issue as being on appeal in a June 2016 statement of the case (SOC), and the Veteran appealed all issues in his July 2016 VA Form 9. Thereafter, the RO certified the issue to the Board. Therefore, the Board finds that the issue of entitlement to service connection for hypertension has remained in appellate status based on the actions of the RO. See Percy v. Shinseki, 23 Vet. App. 37, 42-45 (2009). New and material evidence to reopen the issue of hypertension In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). In a February 2008 rating decision, the RO previously considered and denied the claim for service connection for hypertension. In that decision, the RO noted that the service treatment records were negative for a diagnosis hypertension and that there was no evidence showing that the current disorder manifested in service or within one year of service or was otherwise related thereto. The Veteran was notified of the February 2008 rating decision and of his appellate rights; however, he did not submit a notice of disagreement with the decision. There was also no evidence received within one year of the issuance of the decision. Therefore, the February 2008 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103. In October 2010, VA called the Veteran to inform him that his claim for hypertension would be reopened due to Nehmer regulations. See 38 C.F.R. 3.816. However, hypertension does not fall under the Agent Orange Act of 1991 and is not presumptively recognized as having a positive association with herbicide agent exposure by VA. See 38 C.F.R. 3.309(e). Regardless, other evidence pertaining to the Veteran’s hypertension claim has been associated with the claims file since the February 2008 rating decision, including treatment records. A February 2013 treatment record indicated that the Veteran has no family history of hypertension. Moreover, there has been some suggestion that the Veteran’s hypertension could be due to herbicide exposure. This evidence is new and material because additional details have been provided regarding the onset of hypertension. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Therefore, the Board finds that the evidence submitted since the final February 2008 rating decision relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). However, as will be explained below, the Board has determined that further development is needed before the merits of the claim can be adjudicated. REASONS FOR REMAND Entitlement to hypertension The Veteran has not been afforded a VA examination in connection with his claim for service connection for hypertension. Notably, the RO raised the issue of whether his current disorder could be related to his herbicide exposure in service. Although hypertension is not on the list of diseases that VA has associated with Agent Orange exposure, service connection may still be granted on a direct basis for other conditions based on herbicide exposure. 38 C.F.R. §§ 3.303(d), 3.309(e); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007). Therefore, the Board finds that a VA medical examination and medical opinion are to needed to determine the nature and etiology of any hypertension that may be present. Entitlement to TDIU The Veteran has claimed he is unable to work due to his service-connected disabilities. He is currently service-connected for posttraumatic stress disorder (PTSD), hearing loss, and tinnitus. There is evidence indicating that the Veteran struggles in a workplace environment due to his posttraumatic stress disorder (PTSD), and an audiological examination noted that both his bilateral hearing loss and tinnitus impact the ability to work. However, there is no medical opinion addressing the combined effects of his service-connected disabilities. Therefore, the Board finds that a VA examination and medical opinion is needed. The matter is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his hypertension, hearing loss, tinnitus, and PTSD. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. The AOJ should request an up to date completed VA Form 21-8940. 3. After obtaining any outstanding records, the Veteran should be afforded a VA examination to determine the nature and etiology of any hypertension that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should also note that the Veteran served in the Republic of Vietnam during the Vietnam Era. Thus, he is presumed to have been exposed to herbicide agents during service. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has hypertension that is causally or etiologically related to his military service, including exposure to herbicide agents therein (notwithstanding the fact that it may not be a presumed association). (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 the conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After completing the foregoing development, the RO should schedule the Veteran for a VA examination to determine the combined effects of his service-connected disabilities and any resulting impairment. The examiner should address how the Veteran’s service-connected disabilities alone result in functional impairment and comment on the Veteran’s ability to function in an occupational environment. If possible, he or she should also indicate if there is any form of employment that the Veteran could perform, and if so, what type. A written copy of the report should be associated with the electronic claims folder. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Kuczynski