Citation Nr: 18157092 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 15-06 584A DATE: December 11, 2018 ORDER The application to reopen the claim of entitlement to service connection for hypertension as secondary to degenerative joint disease of the lumbar spine and acquired psychiatric disorder is granted. Entitlement to service connection for hypertension as secondary to degenerative joint disease of the lumbar spine and acquired psychiatric disorder is granted. FINDINGS OF FACT 1. In a January 2013 rating decision, the RO denied service connection for hypertension due to finding no evidence that the hypertension resulted from or was aggravated by a service-connected disability. 2. Evidence received since the January 2013 rating decision relates to a previously unestablished fact necessary to substantiate the claim for entitlement to service connection for hypertension on a secondary basis. 3. The Veteran’s hypertension is caused by her service-connected degenerative joint disease of the lumbar spine and acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The January 2013 rating decision that denied the claim for entitlement to service connection for hypertension is final. 38 U.S.C. § 7105 (c) (West 2012); 38 C.F.R. §§ 3.156 (b), 20.1103 (2017). 2. Evidence received since the January 2013 rating decision is new and material and the claim for entitlement to service connection for hypertension is reopened. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (a) (2017). 3. The criteria for service connection on a secondary basis for hypertension are met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1990 to October 1993. This matter is on appeal from a July 2014 rating decision. The Veteran testified at an August 2018 Board hearing before the undersigned Veterans Law Judge. A transcript of the Hearing has been associated with the claims file. 1. Whether new and material evidence has been received to reopen service connection for hypertension as secondary to degenerative joint disease of the lumbar spine and acquired psychiatric disorder 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 shall reopen the claim and review the former disposition of the claim. New and material evidence is defined as evidence not previously submitted to agency decision makers that bear directly and substantially upon the specific matter under consideration; such 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). The Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held 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 to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence received 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.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In this case, the final denial of service connection for hypertension was rendered in a January 2013 rating decision. See January 2013 rating decision. The RO denied service connection for the claim, finding no evidence that the hypertension resulted from or was aggravated by a service-connected disability. The Veteran subsequently sought to reopen the secondary service connection for hypertension claim. The evidence received since the final January 2013 rating decision includes a positive nexus opinion from Dr. P., who opined that the Veteran’s hypertension, which is chronic in nature, is more likely than not secondary to her service-connected lumbar spine disorder and psychiatric disorder. See August 2018 Medical Opinion from Dr. P. The Board finds the evidence new as it was not previously submitted to agency decision makers. The evidence is also material as it addresses a previously unestablished fact of nexus to a service-connected disability. It is not redundant and, in the very least, when considered with the evidence of record, would trigger VA’s duty to assist by providing a medical opinion, which might “raise a reasonable possibility of substantiating the claim.” See Shade, 24 Vet. App. at 110. Accordingly, the claim is reopened. 2. Entitlement to service connection for hypertension as secondary to degenerative joint disease of the lumbar spine and acquired psychiatric disorder is granted Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); 38 C.F.R. § 3.310 (2017). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s hypertension is secondary to her degenerative joint disease of the lumbar spine and/or acquired psychiatric disorder. Therefore, for the following reasons, entitlement to service connection for hypertension on a secondary basis is granted. First, the Board finds that the Veteran has a current diagnosis of a hypertension. See August 2018 VA Hypertension Disability Benefits Questionnaire (DBQ). Therefore, the current diagnosis requirement is met. The second element on the issue of entitlement to secondary service connection is also met, as the Veteran is service-connected for the disabilities of degenerative joint disease of the lumbar spine and acquired psychiatric disorder. See, e.g., January 2017 Rating Decision Codesheet. Finally, the nexus element is met, as the Board finds that the evidence is in equipoise as to whether the Veteran’s hypertension was caused or aggravated by her service-connected degenerative joint disease of the lumbar spine and acquired psychiatric disorder. The Board acknowledges the negative VA nexus opinion dated July 2014 that is on file. See July 2014 VA Medical Opinion Disability Benefits Questionnaire. In the July 2014 VA nexus opinion, the VA examiner opined that the Veteran’s hypertension was less likely than not related to service or a service-connected disability because the Veteran’s hypertension is not a chronic condition. Moreover, the examiner stated that while anxiety and depression may temporarily make one agitated, it does “not cause the basic cause of essential hypertension,” which is what the examiner stated the Veteran has. The examiner also opined that the Veteran’s lumbar condition does not aggravate the Veteran’s hypertension beyond its normal progression; however, he failed to provide any basis for this opinion. The Board finds this opinion entitled to minimal probative weight because a subsequent VA examination showed that the Veteran’s hypertension is chronic in nature. See August 2018 Medical Opinion from Dr. P; August 2018 VA Hypertension DBQ. Therefore, the July 2014 VA opinion cannot be said to be based on accurate facts. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). Moreover, the July 2014 VA examiner did not provide sufficient reasons for his medical opinion. See also Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (whether a physician provides a basis for his medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits). On the other hand, the Board finds persuasive an August 2018 positive nexus opinion from Dr. P., who opined that the Veteran’s hypertension, which the examiner found to be chronic in nature, is more likely than not secondary to her service-connected lumbar spine disorder and psychiatric disorder. See August 2018 Medical Opinion from Dr. P; August 2018 VA Hypertension DBQ. Because Dr. P. based the opinion on the Veteran’s medical history and physical examination of the Veteran, the opinion is sufficient and entitled to probative weight. Hence, after resolving reasonable doubt in the Veteran’s favor, the Board finds that the August 2018 Medical Opinion from Dr. P. supports the finding that the Veteran’s hypertension was caused or aggravated by her service-connected degenerative joint disease of the lumbar spine and acquired psychiatric disorder, at least to an evidentiary position of equipoise. See 38 C.F.R. § 3.307, 4.124a; see also 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 49. (Continued on the next page)   Based on the foregoing, service connection for hypertension is granted on a secondary basis. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’..., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”). YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. J. Cho, Associate Counsel