Citation Nr: 18154527 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-00 498 DATE: November 30, 2018 ORDER New and material evidence having been received, the issue of service connection for hypertension is reopened. Entitlement to service connection for atherosclerosis is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for abdominal aortic aneurysm, to include as secondary to hypertension and/or atherosclerosis is remanded. Entitlement to service connection for thoracic aorta aneurysm, to include as secondary to hypertension and/or atherosclerosis is remanded. FINDINGS OF FACT 1. The claim for service connection for hypertension was previously denied in an August 2000 rating decision. The Veteran did not appeal that decision and it is therefore final. 2. Evidence added to the record since the August 2000 denial is not cumulative or redundant of the evidence of record at the time of such decision and raises a reasonable possibility of substantiating the Veteran’s claim for service connection for hypertension. 3. The probative and competent evidence of record shows that the Veteran’s atherosclerosis is etiologically related to service. CONCLUSIONS OF LAW 1. The August 2000 rating decision that denied service connection for hypertension is final. 38 U.S.C. § 7104 (b) (2012); 38 C.F.R. § 20.1103 (1999). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for hypertension. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 3. The criteria for service connection for atherosclerosis have been met. 38 U.S.C. §§ 1110, 1131, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1977 to April 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board notes that the RO granted service connection for degenerative joint disease of the right hip in a November 2015 rating decision. Therefore, this issue is no longer on appeal before the Board. Additionally, in a December 2015 VA Form 9, the Veteran asserted that his aneurysm was caused by either hypertension and/or atherosclerosis. Therefore, the Board has expanded the claims for service connection for abdominal aortic aneurysm and thoracic aorta aneurysm to include as secondary to both hypertension and/or atherosclerosis. 1. New and material evidence having been received, the issue of service connection for hypertension is reopened The claim for service connection for hypertension was previously denied in an August 2000 rating decision. The Veteran did not appeal that decision and it is therefore final. The Veteran seeks to reopen his claim for service connection for hypertension. Although the RO determined in an October 2014 rating decision that new and material evidence sufficient to reopen the claim for hypertension had been submitted, the Board must consider the question of whether new and material evidence has been received because it goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined is irrelevant. Id. The claim for entitlement to service connection for hypertension may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran filed this application to reopen his claim in March 2014. New evidence means existing evidence that, by itself or when considered with the 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) (2017). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The evidence before the VA at the time of the prior final decision consisted of the Veteran’s service personnel records, VA treatment records, and a VA examination. The RO denied the claim, finding that though there was a record of treatment in service for one episode of hypertension, there was no permanent residual or chronic disability subject to service connection shown by service medical records or demonstrated by evidence following service. Following the Veteran’s application to reopen the claim, VA treatment records, service treatment records, and private treatment records were obtained. Specifically, a May 2014 private treatment record determined that it was at least as likely as not that the Veteran’s hypertension began while he was in service. The Board finds that this opinion is new in that it was not previously considered. The Board further finds that this evidence is material to the Veteran’s claim because it addresses a missing factor in service connection. Thus, for these reasons, the claim for service connection for hypertension is reopened. 2. Entitlement to service connection for atherosclerosis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be established on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). A Persian Gulf veteran is one who served in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317 (e). In this case, the Veteran’s service personnel records confirm his service in the Southwest Asia Theater of operations. Accordingly, the Board finds the Veteran is a Persian Gulf veteran and the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 may apply if he is found to have a qualifying chronic disability. The term “qualifying chronic disability” means a chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi symptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome; fibromyalgia, or functional gastrointestinal disorders. 38 C.F.R. § 3.317 (a)(2). Signs or symptoms which may be manifestations of an undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, fatigue, signs or symptoms involving skin, headaches, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317 (b). Even where service connection cannot be presumed under law, service connection may still be established on a direct basis. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran asserts that his atherosclerosis is caused by service. Service treatment records are silent for complaints, treatment, or diagnosis of atherosclerosis. The Veteran was diagnosed with atherosclerosis in August 2013. In a July 2014 private treatment record, the Veteran’s treating physician stated that he reviewed the Veteran’s service records and found that the Veteran was noted to have a history of hypercholesterolemia and hyperlipidemia noted in 1989. The treating physician noted where the Veteran received no other treatment for cholesterol management other than counseling on diet and exercise modification. The physician also said that he found where the Veteran was first diagnosed with labile hypertension in 1995 with blood pressure readings ranging from 130-150s systolic throughout his records. Therefore, the physician opined that the Veteran’s atherosclerosis, predisposing him to abdominal aortic aneurysm, began while he was in service. The Board notes that the Veteran has been diagnosed with a disability. Therefore, the Board finds that the Veteran has not been given an undiagnosed illness and thus service connection cannot be granted on a presumptive basis. However, the Board finds that service connection can be granted on direct service connection basis. The Board finds the July 2014 private treatment record to be probative and competent. The treating physician reviewed the Veteran’s service treatment records and provided a clear rationale for his opinion. Additionally, there are no other opinions of record. Therefore, after affording the Veteran the benefit of the doubt, and finding a probative positive opinion in the record, the Board finds the Veteran’s atherosclerosis is etiologically related to his service. Accordingly, service connection for atherosclerosis is warranted. Thus, the Veteran’s claim is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. In a claim to reopen, the duty to assist by arranging for a VA examination or obtaining a medical opinion does not attach until the previously denied claim is reopened. 38 C.F.R. § 3.159 (c)(4)(iii). In light of the foregoing reopening of the claim, the Board finds that this duty to provide an examination must now be considered. Therefore, the claim must be remanded for a new VA examination addressing whether the Veteran’s hypertension is related to service. The examiner must consider the May 2014 private physician’s opinion when examining the Veteran and his record. 2. Entitlement to service connection for abdominal aortic aneurysm, to include as secondary to hypertension and/or atherosclerosis is remanded. The Board finds that the issue of abdominal aortic aneurysm is inextricably intertwined with the issue of hypertension. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Additionally, the Board notes that the July 2014 private treatment record noted that the Veteran’s atherosclerosis predisposed him to his abdominal aortic aneurysm. As the Board has now granted service connection for atherosclerosis, the RO must reconsider the July 2014 private treatment record, and schedule a VA examination if needed. 3. Entitlement to service connection for thoracic aorta aneurysm, to include as secondary to hypertension and/or atherosclerosis is remanded. The Board finds that the issue of thoracic aorta aneurysm is inextricably intertwined with the issue of hypertension. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following actions: 1. Obtain any outstanding VA or private treatment records. Request that the Veteran assist with locating these records, if possible. Associate these records with the claims file. 2. Then, schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of the Veteran’s hypertension. The claims file and a copy of this remand should be provided to the examiner for review. After review, the examiner is asked to determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension is related to service. A clear rationale must be provided for all opinions expressed. The examiner must consider the lay statements of record as well as the May 2014 private treatment record. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to provide an opinion, if possible. 3. Following a determination by the VA examiner regarding the Veteran’s hypertension, the RO is then asked to readjudicate the claims of service connection for abdominal aortic aneurysm and thoracic aorta aneurysm. Regarding the claim for abdominal aortic aneurysm, the RO should also consider the July 2014 private treatment record. A VA examination should be scheduled for the Veteran’s abdominal aortic aneurysm claim, if found necessary. (Continued on the next page)   4. Thereafter, readjudicate the claims on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel