Citation Nr: 1816722 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 14-39 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received with respect to the claim of entitlement to service connection for hypertension. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Shouman, Associate Counsel INTRODUCTION The Veteran honorably served on active duty from October 1979 to September 1983, from March 2002 to November 2002, and from March 2003 to May 2004. These matters are before the Board of Veterans' Appeals (Board) on appeal from a an August 2012 rating decision of a U.S. Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for hypertension because the evidence submitted was not new and material. The appellant timely appealed the decision with a notice of disagreement received by VA in October 2012. After the RO issued a statement of the case in August 2014, the appeal was perfected with the timely filing of a substantive appeal in September 2014. The appellant testified before the undersigned Veterans Law Judge at a January 2018 videoconference hearing. A hearing transcript has been associated with the claims file and reviewed. The issue of entitlement to service connection for hypertension on the merits, to include as secondary to PTSD, is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. Service connection for hypertension was denied in a July 2005 rating decision; the record does not reflect that a notice of disagreement or new and material evidence was received within one year of the rating decision. 2. Since the last final July 2005 rating decision that denied service connection for hypertension, VA received evidence that is new and material with respect to the claim. CONCLUSIONS OF LAW 1. The July 2005 rating decision that denied service connection for hypertension became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302(a), 20.1103. 2. Since the July 2005 rating decision, new and material evidence was received to reopen the previously denied claim for service connection for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS After reviewing the pertinent medical and lay evidence of record, the Board finds that new and material evidence has been received such that the petition to reopen the claim of entitlement to service connection for hypertension is granted. VA has a duty to provide veterans with notice and assistance in substantiating a claim. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). As this decision grants the petition to reopen the claim of entitlement to service connection for hypertension, a full award of the benefit sought on appeal, a discussion on the Board's compliance with VA's duties on this issue is moot. The August 2014 statement of the case reopened the Veteran's claim of service connection for hypertension. Nevertheless, the issue of whether new and material evidence has been presented must be determined by the Board de novo, as the matter is a jurisdictional issue that the Board must address. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Where a claim has been finally adjudicated, new and material evidence is required in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995) (emphasizing that the Board cannot ignore the issue of whether any new and material evidence has been submitted so that the appellant's claims could be reopened). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which, by itself or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening a claim, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992) (stating that in determining whether evidence is new and material, credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Id. at 117-20. In this case, the claim for service connection for hypertension is reopened because since the final July 2005 rating decision denying service connection, new and material evidence has been received. The RO issued a decision in July 2005 that denied the Veteran's claim of service connection for hypertension. The RO found that the evidence showed that the Veteran was diagnosed with hypertension in 1995 and that she was not on active duty at that time. See 08/09/2012, Notification Letter, at 2. The RO also found that there was no evidence of the Veteran's hypertension being permanently worsened as a result of her military service. Id. The RO then issued a rating decision in August 2012 that denied the Veteran's petition to reopen the claim. Id. at 1. The RO found that new and material evidence adequate to reopen the claim had not been submitted. Id. at 1-2. Since the last final July 2005 RO denial, VA medical records have been received that reflect treatment for hypertension since October 2004. Moreover, at the January 2018 Board hearing, the Veteran testified that she took additional medication for hypertension after service. Because the appellant's claims file was lost by VA and through no fault of hers, and because the record does not reflect that the July 2005 rating decision considered treatment records or whether she had submitted a statement similar to her contentions at the July 2018 hearing, the Board finds in favor of the appellant that there is new evidence that relates to an unestablished element (in-service aggravation or worsening) of the previously denied claim and raises a reasonable possibility of substantiating the claim, as it potentially establishes a connection between a current disability and aggravation in service. Therefore, the claim is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. at 120-21. ORDER New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for hypertension is granted. REMAND The Board finds that additional development is necessary before it can adjudicate the issue of entitlement to service connection for hypertension, to include as secondary to PTSD. The notification regarding the July 2005 rating decision states that the Veteran was diagnosed with hypertension, and the Veteran has contended that her hypertension had worsened following service. While this evidence is insufficient to determine whether the Veteran's hypertension is service connected, competent evidence of the Veteran's hypertension, coupled with her contentions of worsening symptoms following service, does indicate a possible relationship such that VA should provide an opinion in this case. See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006) (holding that if there is insufficient medical evidence to decide a service connection claim, then a medical examination is required if a possible connection between an in-service injury and a disability exists). As such, the Board finds that a VA examination is necessary to consider whether the Veteran's hypertension was aggravated or worsened by active service. Moreover, the Veteran has contended that that her hypertension is due to her service-connected PTSD. Specifically, at the January 2018 Board hearing, the Veteran's representative indicated that if her PTSD is aggravated, then her hypertension can also be aggravated. As such, a VA examination is necessary in order to obtain an opinion on the relationship, if any, between the Veteran's hypertension and service-connected PTSD. Furthermore, VA has been corresponding with the Florida Adjutant General to obtain the Veteran's medical records from service, as they have been lost with the claims file. See 01/08/2015, Fax Cover Sheet; 10/01/2014, Correspondence. As such, the AOJ should continue its efforts to locate the service treatment records from the Florida Adjutant General. Additionally, on remand, any other outstanding, pertinent VA treatment records should be obtained. The Board notes that VA made a formal finding that service treatment records are unavailable for review. 10/01/2014, Correspondence. Those records were not lost by any fault of the appellant. In accordance with O'Hare v. Derwinski, 1 Vet. App. 365, 368 (1991), a heightened duty now exists to assist the Veteran in the development of the case. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding, pertinent treatment records, to include service treatment records - to include contacting the Florida Adjutant General (as appropriate), and VA treatment records since January 2018. As many attempts should be made as necessary to obtain those records, to include requesting a specific negative response if no records are located. The appellant is to be notified of any unsuccessful effort to obtain outstanding VA and private treatment records in order to allow the appellant the opportunity to obtain and submit those records for VA review. Moreover, notify the appellant that she may submit VA Forms 21-4142 and 21-4142a to authorize any private medical provider, to disclose and release to VA information her treatment, and then request those medical records from the private medical provider(s). Additionally, notify the appellant that she may submit any relevant VA and private treatment records in her possession to VA. 2. After all development has been completed and returned from step 1 above, schedule the Veteran for an examination of her hypertension. (If the Veteran fails to report to the examination, then an appropriately qualified VA clinician must answer the questions below.) The examiner is asked to review the claims file to become familiar with the pertinent medical history before providing a medical opinion on the following: a. Did any diagnosed hypertension clearly and unmistakably pre-exist the Veteran's active duty service from March 2002 to November 2002 and/or from March 2003 to May 2004? If so, is there clear and unmistakable evidence that such pre-existing disability did not undergo an increase in the underlying pathology; i.e., was not aggravated by the Veteran's active duty service? If there was an increase in the severity of such disability during active duty service, was that increase clearly and unmistakably due to the natural progression of the disability? b. If not, provide a medication opinion on the following: b.i. Is any hypertension shown or treated at any time during the claim period (from December 2011 to the present) at least as likely as not (50 percent or greater probability) related to active service? If not, does the record at least as likely as not (50 percent or greater probability) show that any cardiovascular-renal disease, including hypertension, manifested within one year of the Veteran's separation from service in September 1983, November 2002, and May 2004? b.ii. Has any hypertension shown or treated at any time during the claim period (from December 2011 to the present) at least as likely as not (50 percent or greater probability) been caused by the Veteran's service-connected PTSD? b.iii. Has any hypertension shown or treated at any time during the claim period (from December 2011 to the present) at least as likely as not (50 percent or greater probability) been aggravated by the Veteran's service-connected PTSD? If aggravation is found, provide a baseline level of the hypertension prior to aggravation. Consider all lay and medical evidence. Provide a comprehensive rationale for any opinions and conclusions offered. If a requested opinion cannot be provided without resort to speculation, court cases require the examiner to explain why the opinion cannot be offered, and to state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge. If any medical literature is cited, then provide a copy of it or a link to it. 3. After all development has been completed and returned from all steps above, if any benefit sought remains denied, then issue a supplemental statement of the case with consideration to all pertinent evidence, and return the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and arguments on any matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999) (per curiam). Remanded claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the U.S. Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. _________________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs