Citation Nr: 1808748	
Decision Date: 02/13/18    Archive Date: 02/23/18

DOCKET NO.  13-15 922	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Whether new and material evidence has been submitted sufficient to reopen a previously denied and final claim for hypertension.

2.  Entitlement to service connection for hypertension.  

3.  Entitlement to service connection for heart disability claimed as due to Agent Orange exposure.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

T. Talamantes, Associate Counsel


INTRODUCTION

The Veteran had active honorable service from December 1972 to August 1977 and from July 1978 to January 1982.  His service from January 27, 1982 to December 14, 1985, has been deemed dishonorable for VA purposes.   

These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.   

The Veteran testified before the undersigned Veterans Law Judge (VLJ) in an October 2017 travel board hearing.  A transcript of the hearing has been associated with the file.

The issues of service connection for hypertension and heart disease are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The AOJ denied service connection for hypertension in March 1987; subsequent VA medical treatment records, statements made in a VA Form 9 and the transcript from the October 2017 hearing when considered credible for purposes of reopening, relate to unestablished facts necessary to substantiate this service connection claim.




CONCLUSIONS OF LAW

1.  The March 1987 rating decision that denied service connection for hypertension was final.  38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017).

2.  New and material evidence has been received to reopen the claim of service connection for hypertension.  38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSIONS

Veterans Claims Assistance Act 

The Veteran has not raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

New and Material Evidence

By way of a March 1987 rating decision, the RO denied service connection for hypertension.  The Veteran timely filed a notice of disagreement, but did not timely appeal this decision and or submit additional evidence after a statement of the case was issued; therefore, the March 1987 rating decision is final.  See U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.302, 20.1103. 

In order to reopen a finally disallowed claim, new and material evidence must be submitted.  See 38 U.S.C. § 5108; see also 38 C.F.R. § 3.156.  Evidence added to the file since the March 1987 denial includes VA medical treatment records, statements made in VA Form 9 and a transcript from the October 2017 hearing.
These records are new because they were not previously considered by agency decision makers.  They are relevant to the Veteran's present claim on appeal, as they document a current diagnosis of hypertension and his contentions relating the disability to service, which are considered credible for purposes of reopening.  As the evidence received since the RO's March 1987 denial includes new and material evidence, the criteria to reopen this claim are met.  38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).


ORDER

The petition to reopen the claim of entitlement to service connection for hypertension is granted.


REMAND

The Board finds that VA examinations are needed prior to the adjudication of the claims on appeal.  

There is a current diagnosis of hypertension, service treatment records that indicate high blood pressure readings and testimony from the Veteran regarding what he considered to be hypertension symptoms during service.

With respect to the heart disease claim, the Veteran contends in service herbicide agent exposure caused this condition.  Regardless, there are in service treatment records that indicate complaints of and treatment for chest pain, including severe chest pain on the left side, pressure in chest, palpitation or pounding heart and statements and testimony from the Veteran of what he considered heart disease symptoms during service.  There also records of a current diagnosis of heart disease.  

Whether the Veteran's hypertension and heart disease are related to service in these circumstances should be the subject of a medical opinion.  Likewise, because the Veteran raised the question of whether any claimed disability is secondary to his service connected PTSD, that question should be addressed by a medical professional as well.  

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the Veteran's claims file any and all outstanding VA treatment records related to the Veteran's claimed hypertension and claimed heart disease.  The Veteran should also be afforded the opportunity to identify and/or provide any outstanding private evidence pertinent to his claims.  

2.  The AOJ should provide the Veteran's file to an appropriate person to attempt to determine the etiology of the Veteran's hypertension and heart disease.  After reviewing the claims file, the reviewer is asked to offer an opinion as to the following:

i.)  whether the Veteran's hypertension and whether his heart disease are at least as likely as not (i.e., probability of 50 percent) etiologically related to, or had their respective onset during the Veteran's active military service (from December 1972 to August 1977 and from July 1978 to January 26, 1982); 

ii.)  whether the Veteran's hypertension and whether his heart disease are at least as likely as not (i.e., probability of 50 percent) caused OR aggravated by the Veteran's service-connected disabilities, to include his service-connected posttraumatic stress disorder;

iii.)  whether it is at least as likely as not (i.e., probability of 50 percent) that the hypertension was caused OR aggravated by the Veteran's heart disease and whether it is at least as likely as not the Veteran's heart disease caused or aggravated the Veteran's hypertension.  

In offering the opinions, the various statements concerning the Veteran's symptom presentation during his honorable period of service should be considered.  

The examiner should provide a complete rationale for any opinions expressed.

3.  After completion of the above and any further development deemed necessary by the AOJ, the claims should be re-adjudicated.  If any benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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).




______________________________________________
M. E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs