Citation Nr: 1816728 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 14-23 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for hypertension. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected lumbar spine disability and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ben Winburn, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from May 1987 to January 1993. He was additionally a member of the Tennessee Army National Guard from June 1996 to June 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In a January 24, 2018 letter, the Veteran's representative submitted the Veteran's request to cancel his videoconference hearing scheduled for January 26, 2018. As such, the Veteran's hearing request is deemed to have been withdrawn. FINDINGS OF FACT 1. Service connection for hypertension was denied in an unappealed March 2010 rating decision on the basis that no nexus to service was shown. 2. Evidence received since March 2010 was not previously considered by agency decision makers, is not cumulative or redundant of evidence already of record, relates to an unestablished fact, and raises the reasonable possibility of substantiating the claim. 3. Currently diagnosed hypertension was not first manifested on active duty or during the first post-service year, and is not otherwise shown to be related to service or to a service-connected disability. CONCLUSIONS OF LAW 1. The March 2010 rating decision denying service connection for hypertension is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017) 2. The criteria for reopening a previously denied claim of service connection for hypertension have been met. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156 (2017). 3. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice has been afforded the Veteran, and all pertinent service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained. The Veteran was also afforded a VA examination in response to the claim. As will be discussed below, the Board has found this examination to be adequate as the examination report provided a complete medical history, competent findings, and a comprehensive medical opinion based on the facts contained in the record. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran's claim. New and Material Evidence Irrespective of the RO's action, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Jackson v. Principi, 265 F.3d 1366 (Fed Cir 2001) ("Thus, the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened....") Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing 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 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). 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). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Service connection for hypertension was denied in March 2010 on the grounds that no nexus to service was shown on a direct or presumptive basis. Since that time the Veteran has alleged secondary service connection, relating his hypertension to his low back disability and/or his PTSD. He has additionally competently reported that a doctor has informed him such a relationship exists. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Mere offering of an alternative theory of entitlement does not constitute new and material evidence sufficient to reopen the claim. Roebuck v. Nicholson, 20 Vet. App. 307 (2006); Bingham v. Principi, 18 Vet. App. 470 (2004), aff'd 421 F.3d 1346 (Fed. Cir. 2005). The reported opinion of the doctor, however, is evidence in support and is sufficient to reopen the claim. Service Connection Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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; 38 C.F.R. §§ 3.102, 4.3 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days after December 31, 1946, and manifests hypertension to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). The Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran asserts that he has hypertension that was caused by or the result of active service; alternatively, he contends that his hypertension was proximately due to or the result of medication treatment for his service-connected lumbar spine disability and service-connected PTSD. At the time of the Veteran's claim to reopen, he had been diagnosed with and treated for hypertension for approximately 3 years; objective medical evidence of the Veteran's hypertension diagnosis entered the record in a 2009 private treatment record wherein the condition was noted to be well controlled with medication. A March 2014 VA examination report confirmed the Veteran's hypertension diagnosis, and reported he had been followed routinely in primary care at the VAMC Mountain Home in Tennessee "at least since 1998." The examiner noted the Veteran's hypertension treatment plan included taking continuous medication for control and the Veteran's blood pressure at that time was recorded as 128/72, 132/77, and 132/79 with an average blood pressure reading of 130/76. The examiner opined that the Veteran's hypertension was multifactorial, and known to be related to gender, age, diet, weight, family history, tobacco use, alcohol consumption, and other associated factors. The examiner noted the Veteran had long-standing hyperlipidemia, marked obesity, a history of smoking, and almost daily alcohol consumption at the time of his hypertension diagnosis. The examiner further noted that the Veteran was not prescribed any medication for his service-connected PTSD at the time of diagnosis; therefore, it was not a factor. The examiner explicitly stated that, although the Veteran's medication treatment for his lumbar spine disability included a nonsteroidal anti-inflammatory drug (NSAID) in Meloxicam, NSAIDS were noted to be a potential contributor to secondary hypertension and were not associated with primary or essential hypertension for which the Veteran had been treated since 2009. In her rationale statement, the examiner emphasized that the Veteran's hypertension was not related to his PTSD, pain stemming from his lumbar spine disability, or medications for treatment of those disorders due to well-controlled blood pressure readings. Based on the foregoing, examiner opined that the Veteran's currently diagnosed hypertension was less likely than not proximately due to or the result of service-connected PTSD, service-connected lumbar spine posttraumatic arthritis, as well as medication treatment for those disabilities. Service connection is not warranted for hypertension, either on a direct or presumptive basis. Initially, the Board finds the evidence shows that hypertension was not present until more than one year after discharge from service. The initial diagnosis was made more than three years after separation, and previous treatment records which document blood pressure readings do not reveal evidence of hypertension; therefore, service connection on a presumptive basis is not warranted as the disability did not manifest itself to a compensable degree within one year of separation from service. In fact, the medical evidence of record both from the STRs and from the post-service treatment notes of record following the time of discharge and up to the date of initial diagnosis does not indicate chronic elevation of blood pressure. Furthermore, the evidence does not suggest that the hypertension is related to service. There is no medical opinion of record linking the Veteran's hypertension to service, and the Veteran has not provided a history of hypertensive symptoms during and since service or otherwise indicated how the disorder could be related to service aside from general statements regarding the relationship between chronic pain and high blood pressure. Finally, the evidence does not suggest that the hypertension is secondary to a service-connected disability. There is no medical evidence linking the hypertension to a service-connected disability, through either cause or aggravation, and the VA examiner provided a probative opinion that the hypertension was not caused or aggravated by the service-connected PTSD or lumbar spine disability, including any use of nonsteroidal anti-inflammatory medications (such as Meloxicam). Regarding PTSD, the examiner explained that the hypertension has historically been under good control. The record does not include any medical evidence of a link between the use of anti-inflammatories and hypertension and no probative findings (i.e., nonconditional) of a link between the Veteran's hypertension, which is not malignant, and PTSD. Although the Veteran might believe that his hypertension is related to service or is secondary to service-connected disability, the record does not suggest the Veteran, who is a layperson, is competent to determine such a relationship. In any event, the Veteran's lay opinion is less probative than the VA medical opinion against the claim. Accordingly, the claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim. ORDER Entitlement to service connection for hypertension is denied. ____________________________________________ WILLIAM H. DONNELLY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs