Citation Nr: 1824324	
Decision Date: 04/24/18    Archive Date: 05/03/18

DOCKET NO.  14-34 767A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

1.  Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for hypertension.

2.  Entitlement to service connection for hypertension.

3.  Entitlement to secondary service connection for an aortic aneurysm.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S.S. Mahoney, Associate Counsel 


INTRODUCTION

The Veteran served on active duty in the United States Air Force from March 1975 to September 1993.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The issues of entitlement to service connection for hypertension and secondary service connection for an aortic aneurysm are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  A March 1995 rating decision denied service connection for hypertension; the Veteran did not appeal that decision, and new and material evidence was not received within one year of notice of its issuance.

2.  Evidence received more than one year since the March 1995 rating decision is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for hypertension.


CONCLUSIONS OF LAW

1.  The March 1995 rating decision is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. 
§ 20.1103 (2017).

2.  The criteria to reopen the claim of entitlement to service connection for hypertension are met.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103.  If a claim of entitlement to service connection has been previously denied and that decision became 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; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).

New evidence is defined as 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 Veteran's initial claim of entitlement to service connection for hypertension was denied in a March 1995 rating decision, based in part on a lack of a current diagnosis of the disability.  The Veteran did not appeal this decision, and new and material evidence was not received within one year of its issuance.  Accordingly, the March 1995 rating decision is final, and new and material evidence is required to reopen the claim.  See 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(b), 20.1103; Buie v. Shinseki, 24 Vet. App. 242 (2010).

Evidence received more than one year since the March 1995 rating decision includes an April 2012 VA examination diagnosing hypertension, as well as updated VA and private treatment records.  This evidence is new, as it was not considered in the prior denial.  It is also material, because it is not cumulative or duplicative of evidence previously considered and it raises a reasonable possibility of substantiating the claim.  As such, the Veteran has presented new and material evidence to reopen the previously denied claim of entitlement to service connection for hypertension.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).


ORDER

New and material evidence has been received to reopen the claim of entitlement to service connection for hypertension. 


REMAND

Remand is warranted for the Veteran's claim of entitlement to hypertension, because the April 2012 VA examiner's opinion is inadequate.  Specifically, the examiner did not discuss the Veteran's elevated blood pressure readings in service or address the fact that he was regularly prescribed Cardizem in service.  The November 2012 private nexus statement is also inadequate, because the physician attributed the Veteran's hypertension to his continued treatment of hypertension since 1998, 5 years after service.  Accordingly, an addendum opinion is necessary.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

The claim for entitlement to secondary service connection for an aortic aneurysm is inextricably intertwined with the requested development on the hypertension claim.  As such, action on this claim is deferred.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter).  Any outstanding VA and private treatment records should be secured.


Accordingly, the case is REMANDED for the following action:

1. Obtain all outstanding VA treatment records.

2. With any necessary assistance from the Veteran, obtain any outstanding pertinent private treatment records.

3. Then refer the claims file to an examiner other than the April 2012 VA examiner for preparation of an addendum opinion.  The entire claims file should be made available to the examiner.  No additional examination is necessary, unless the examiner determines otherwise.  

(a) Following a review of the claims file the examiner should opine as to whether it is as least as likely as not (50 percent or greater probability) that the Veteran's hypertension had its onset in service, or is otherwise related to service.  In addressing this question please consider the Veteran's blood pressure readings in service, the Veteran's reported history of hypertension in May 1988 and January 1992, noted Cardizem prescriptions in May 1988, November 1990, and May 1992, and his denial of hypertension in November 1994.

(b) If the answer to question (a) is yes, the examiner should also opine as to whether it is as least as likely as not (50 percent or greater probability) that the Veteran's aortic aneurysm is (1) proximately due to or (2) aggravated (worsened) by hypertension.  Please answer both inquiries.

A complete rationale should be given for all opinions and conclusions expressed.  If the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner explain why an opinion cannot be provided - please specifically state whether the inability to opine is due to the limits of the examiner's knowledge, the limits of medical knowledge in general; or there is additional evidence that would allow for an opinion on this matter.

4. Then, after taking any additional development deemed necessary, readjudicate the claims and issue a Supplemental Statement of the Case, as appropriate.

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).



______________________________________________
S. BUSH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs