Citation Nr: 18153996 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 18-28 778 DATE: November 29, 2018 ORDER The application to reopen a claim of service connection for hypertension is granted. REMANDED Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. In a March 2016 rating decision, the RO denied service connection claim for service connection for hypertension. The Veteran did not appeal this decision, and new and material evidence was not received within one year after it was issued. 2. Evidence received since the March 2016 decision relates to an unestablished fact necessary to substantiate the claim for service connection for hypertension and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The March 2016 rating decision that denied service connection claim for service connection for hypertension is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. Since the March 2016 rating decision, new and material evidence has been received to reopen the claim of entitlement to service connection for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from April 1968 to April 1970, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO declined to reopen the previously denied service connection claim for hypertension. New and Material Evidence Whether new and material evidence has been received to reopen a claim for entitlement to service connection for hypertension. Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An 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, VA will reopen the claim and review it on the merits. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). In a June 2015 rating decision, the RO originally denied the Veteran’s claim of service connection for hypertension on the basis that there was no evidence that it occurred in or was caused by service. The Veteran did not appeal that decision, nor was new and material evidence associated with the record within one year of its issuance. In October 2015, the Veteran submitted an application to reopen his previously denied claim of entitlement to service connection for hypertension. In a March 2016 rating decision, the RO denied service connection for hypertension, on the basis that that there was no evidence that it occurred in or was caused by service. The Veteran did not appeal that decision, nor was new and material evidence associated with the record within one year of its issuance. Accordingly, the March 2016 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The relevant evidence of record at the time of the March 2016 rating decision consisted of the Veteran’s service treatment records (STRs) and VA treatment records. Specifically, his VA treatment records showed a diagnosis of hypertension. See VA treatment record dated November 2014. In January 2017, the Veteran submitted an application to reopen his previously denied claim of entitlement to service connection for hypertension. Relevant evidence received after the March 2016 rating decision includes the Veteran’s statements contained in his May 2018 VA Form 9. The Veteran claimed that his hypertension is due to his Agent Orange exposure while stationed in the Republic of Vietnam. This theory of entitlement to service connection was not previously considered. While a new theory of entitlement is not itself a basis for reopening a claim, Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008) (“A new theory of causation for the same disease or injury that was subject of a previously denied claim cannot be the basis of a new claim”), in determining whether the low threshold for reopening is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. Id. at 118. In this case, the Veteran’s lay statements and the other evidence of record, to include the general medical literature discussed below, could reasonably substantiate the claim through consideration of an alternative theory of entitlement. Accordingly, the evidence received since the March 2016 rating decision is new and material, and reopening of the claim of service connection for hypertension is therefore warranted. REASONS FOR REMAND Entitlement to service connection for hypertension is remanded. The Veteran claims that his hypertension is due to his Agent Orange exposure while stationed in Vietnam. See Veteran’s VA Form 9 dated May 2018. The Veteran’s service records indicate that he served in Vietnam. Thus, Agent Orange exposure is conceded based on the circumstances of the Veteran’s military service. See 38 U.S.C. § 1116(f). VA treatment records shows a current diagnosis of hypertension. See, e.g., VA treatment record dated April 2017. Notably, hypertension is not a disease listed in 38 C.F.R. § 3.309 (e), which establishes the diseases associated with exposure to Agent Orange. However, according to the National Academy of Science (NAS), in Veterans and Agent Orange: Update 11 (2018), hypertension has been upgraded to the “sufficient” category from the “limited or suggestive,” category, indicating that “there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and an herbicide agent. In any event, the Veteran is not precluded from establishing service connection for hypertension based on the theory that they were actually caused by Agent Orange exposure. See 38 U.S.C.§ 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). Here, the evidence of record suggests that the Veteran’s current hypertension may be associated with his presumed exposure to Agent Orange. However, the Veteran has not been afforded a VA examination or opinion to determine the etiology of his hypertension. Therefore, a remand is necessary to obtain a VA medical opinion on this question. The matter is REMANDED for the following action: 1. Request an opinion from a VA physician as to the etiology of the Veteran’s hypertension. The claims file, including a copy of this remand, must be made available to the physician for review. The VA physician should opine whether the Veteran’s hypertension, is it at least as likely as not (i.e., a 50 percent probability or greater) had its onset during service, within one year following his discharge from service, or is otherwise related to his military service, to include his presumed exposure to an herbicide agent (Agent Orange) in the Republic of Vietnam. 2. In addressing the above, the physician must consider and address the NAS, Veterans and Agent Orange: Update 11 (2018), which reflects that NAS upgraded hypertension to the “sufficient” category from “limited or suggestive,” indicating that “there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and an herbicide agent. See http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137. The physician should provide a complete rationale for any opinion given. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Castillo, Associate Counsel