Citation Nr: 1806426 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-03 560 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension. 2. Entitlement to service connection for hypertension, claimed as secondary to Type II diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Stepanick, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board notes that, regardless of the determination reached by the RO with respect to whether new and material evidence has been received, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of the previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). As was noted by the Veteran's representative in a December 2017 brief, the Veteran requested a hearing before a Veterans Law Judge in his January 2013 substantive appeal. However, in August 2014 correspondence submitted to VA, the Veteran withdrew that request. Thus, his hearing request is considered withdrawn. 38 C.F.R. § 20.704(e) (2017). The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. FINDINGS OF FACT 1. A November 2008 rating decision denied service connection for hypertension, and neither new and material evidence nor a notice of disagreement was received within one year of that decision. 2. Some of the evidence received since the November 2008 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for hypertension. CONCLUSION OF LAW The November 2008 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for hypertension. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is seeking service connection for hypertension. As will be discussed, that claim was previously finally denied. However, the Board finds that new and material evidence has been received such that it may be reopened. Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Service connection for hypertension was initially denied by the RO in a June 2008 rating decision, and that denial was continued in a November 2008 rating decision. The Veteran was notified of the November 2008 decision and his appellate rights that month, and he did not appeal or submit new and material evidence within one year. Therefore, the decision became final. See 38U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b); 20.302, 20.1103 (2017); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). The evidence considered at the time of the November 2008 decision included service treatment records (STRs), post-service treatment records, and two VA examination reports. The RO denied the Veteran's claim because it found that there was no evidence of hypertension in service and because a VA examiner had determined that the Veteran's hypertension was essential rather than a complication of his service-connected Type II diabetes mellitus. The evidence added to the record since the November 2008 denial consists of additional post-service treatment records and an April 2011 VA examination report that includes a negative opinion regarding whether the Veteran's diabetes caused his hypertension, but no opinion on whether his diabetes may have aggravated it. The foregoing evidence is "new," as it was not previously submitted to agency decision makers. Furthermore, as the April 2011 VA examiner's failure to address whether diabetes may have aggravated the Veteran's hypertension would trigger VA's duty to assist if the claim were reopened, the Board concludes that the inadequate examination also constitutes material evidence sufficient to reopen the Veteran's claim in this instance. See Shade, 24 Vet. App. at 120-21; Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). ORDER New and material evidence having been received, the claim of entitlement to service connection for hypertension is reopened. REMAND As was already explained, an April 2011 VA examiner opined that the Veteran's hypertension was not caused by his service-connected Type II diabetes, but she did not address whether the Veteran's diabetes could have aggravated his hypertension. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). As an adequate aggravation opinion is not otherwise of record, one must be obtained on remand. See Barr, 21 Vet. App. at 311. Additionally, the Veteran's representative asserted, in a December 2017 brief, that relevant private treatment records dated prior to 2005 may be outstanding. Review of the claims file supports that assertion, as the Veteran has reported being diagnosed with hypertension and diabetes by a certain private physician in approximately 1999 or 2000, but the records obtained from that physician date to 2005, only. Thus, earlier records from that physician, and any other outstanding private records the Veteran identifies, should be sought on remand. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify and authorize VA to obtain any outstanding private treatment records, to specifically include any records associated with treatment for hypertension and/or diabetes by Dr. Newman (see April 2007 VA Form 21-4142) or any other private physician prior to 2005. After obtaining any necessary authorization forms from the Veteran, obtain any pertinent records identified and associate them with the claims file. Any negative responses should be in writing and should be associated with the claims file. 2. After the development requested in item 1 has been completed to the extent possible, send the claims file to an internist for review. If the internist determines that a new examination is needed to respond to the questions posed, one should be scheduled. Following review of the claims file, the internist should respond to the following: Is it at least as likely as not (50 percent probability or more) that the Veteran's hypertension was either (1) caused by, or (2) aggravated by his service-connected Type II diabetes mellitus? Please explain why or why not. If you find that the Veteran's hypertension has been aggravated by his diabetes, please attempt to quantify the degree of aggravation beyond the baseline level of disability. A complete rationale for the opinion rendered must be provided. If you cannot provide the requested opinion without resorting to speculation, please expressly indicate this and state why it is so. 3. After completing the requested actions, and any additional action deemed warranted, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and his representative and afford them an opportunity to respond. Then, return the case to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs