Citation Nr: 19196192 Decision Date: 12/26/19 Archive Date: 12/26/19 DOCKET NO. 17-26 080 DATE: December 26, 2019 ORDER New and material evidence having been submitted, the claim for entitlement to service connection for glaucoma is reopened; the appeal is granted to this extent only. REMANDED Entitlement to service connection for hypertension (HBP), to include as secondary to service-connected coronary artery disease (CAD) and to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for glaucoma, to include as secondary to service-connected CAD and HBP, is remanded. Entitlement to service connection for disorder manifested by syncope, to include as secondary to service-connected CAD, is remanded. FINDINGS OF FACT 1. In a final decision issued in June 2006, the Agency of Original Jurisdiction (AOJ) denied service connection for glaucoma. 2. Evidence associated with the record since the final June 2006 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for glaucoma. CONCLUSIONS OF LAW 1. The June 2006 rating decision that denied service connection for glaucoma is final. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2006) [(2018)]. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for glaucoma. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from July 1965 to July 1969, to include service in the Republic of Vietnam. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in March 2015 by a Department of Veterans Affairs (VA) Regional Office. Subsequent to the May 2017 Statement of the Case, additional evidence, to include VA examination reports, treatment records, and lay evidence, was associated with the record. The Veteran has not waived AOJ consideration of such evidence; however, given the favorable determination and remand of the remaining claims herein, the Board finds there is no prejudice to the Veteran in proceeding with a decision at this time. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for glaucoma By way of background, VA received the Veteran’s original claim for service connection for glaucoma in January 2006. Thereafter, in a June 2006 rating decision, the AOJ considered the Veteran’s service treatment records, post-service treatment records, and lay statements of record but found the evidence did not establish a causal nexus between glaucoma and military service. Further, in response to the Veteran’s secondary theory of entitlement, the AOJ noted the Veteran was not service-connected for arthritis and, therefore, service connection for glaucoma could not be granted on that basis. Consequently, service connection for glaucoma was denied. In June 2006, the Veteran was advised of the decision and his appellate rights; however, he did not enter a notice of disagreement. Furthermore, no new and material evidence was physically or constructively received within one year of the issuance of such decision, and no relevant service department records have since been received. Therefore, the June 2006 rating decision is final. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2006) [(2018)]. Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Upon review of the evidence received since the June 2006 rating decision, the Board finds that such raises a reasonability possibility of substantiating the Veteran’s claim of entitlement to service connection for glaucoma. In this regard, the Veteran has raised new theories of entitlement, namely, service connection for glaucoma secondary to service-connected CAD. In addition, a March 2015 VA eye examination provides evidence relevant to the Veteran’s claim. Consequently, the Board finds that the evidence associated with the record since the final June 2006 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for glaucoma. Therefore, new and material evidence has been received, and such claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for HBP, to include as secondary to service-connected CAD and to include as due to exposure to herbicide agents The Veteran’s service personnel records reflect that he served aboard the Monticello (LSD 35), which is currently on the VA list of ships associated with exposure to herbicide agents in Vietnam. In addition, the evidence indicates the Veteran was aboard when the ship was in Vietnamese waters. As such, VA concedes the Veteran’s in-service exposure to herbicide agents. The Veteran’s representative asserts that the November 2018 National Academy of Sciences update has upgraded hypertension to the “sufficient” category from “limited or suggestive”, thus supporting a medical nexus between the Veteran’s hypertension and herbicide agent exposure. As the evidence does not include a compete medical opinion as to whether the Veteran’s hypertension is related to his presumed exposure to herbicide agents, the Board finds a VA examination is necessary to properly adjudicate the issue on appeal. 2. Entitlement to service connection for glaucoma, to include as secondary to service-connected CAD and HBP VA medical examiners opined that the Veteran’s glaucoma is less likely than not proximately due to or aggravated by CAD. However, in her 2019 Brief, the Veteran’s representative argues that the Veteran’s service-connected heart disease and HBP are risk factors for the Veteran’s current glaucoma condition. In support of the contention, the representative referenced literature from the mayo clinic. See https://www.mayoclinic.org/diseases-conditions/glaucoma/symptoms-causes/syc-20372839. As the 2015 and 2017 VA examiners did not address the risk factors and causal connection identified therein, a medical addendum opinion is warranted to address such matters. The Board also notes that the Veteran raised the issue of entitlement to service connection for glaucoma as secondary to HBP for the first time in the 2019 brief. As the evidence does not contain a competent medical opinion addressing such theory, a remand is required to properly develop and respond to such contention, to include obtaining a medical opinion. 3. Entitlement to service connection for syncope, to include as secondary service-connected CAD In 2015, a VA medical examiner found the Veteran does not have a diagnosis of a separate disability manifested by syncope; notably, the examiner opined the cause of his dizziness cannot be fully known without resort to mere speculation. However, a 2017 VA heart conditions examination indicates the Veteran “continues to have some symptoms such as mild chest pain but also dizziness (emphasis added)” in connection with his service-connected CAD. Thus, a remand is necessary to clarify whether the Veteran has a disorder, separate and distinct from his service-connected CAD, that is proximately due to and/or aggravated by such. The matters are REMANDED for the following actions: 1. Forward the file, to include a copy of this Remand, to the VA examiner who conducted the March 2015 VA examination, or an appropriate substitute if unavailable, for an addendum opinion regarding Veteran’s hypertension condition. The need for an additional in-person examination is left to the clinician selected to write the opinion. The clinician should address the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension is related to his conceded exposure to herbicide agents during service in Vietnam? In answering this question, the examiner is asked to disregard whether the disorder is one for which a “presumption” is established and, instead, to answer whether the medical condition is a result of Agent Orange exposure even though it is not on the list of “presumptive” diseases. The clinician must consider and address the November 2018 National Academy of Sciences update that upgraded hypertension to the “sufficient” category from “limited or suggestive” with respect to a relationship to exposure to herbicide agents. A complete rationale for all opinions proffered should be provided. 2. Forward the file, to include a copy of this Remand, to the VA examiner who conducted the May 2017 examination, or an appropriate clinician if unavailable, to obtain an addendum opinion regarding Veteran’s glaucoma. The need for an additional, in-person examination is left to the discretion of the clinician selected to write the opinion. The clinician should address the following: a. Is it at least as likely as not (50 percent probability or greater) that the Veteran’s glaucoma is proximately due to and/or aggravated by a service-connected CAD? b. If the AOJ awards service connection for HBP, the clinician should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s glaucoma is proximately due to and/or aggravated by his HBP. In providing such opinions, the clinician is asked to consider the Veteran’s contentions that his HBP and service-connected CAD are risk factors for glaucoma and consider the supporting literature submitted by the Veteran. See https://www.mayoclinic.org/diseases-conditions/glaucoma/symptoms-causes/syc-20372839. A complete rationale for all opinions proffered should be provided. 3. Schedule the Veteran for an examination to determine the nature and etiology of his claimed syncope. Provide the file, to include a copy of this Remand, to the examiner and conduct all necessary testing. Thereafter, the examiner should address the following: a) Does the Veteran have a separate and distinct disability manifested by syncope? If not, provide an etiological opinion for such symptoms, to the extent possible. b) If the Veteran does have a separate and distinct disability manifested by syncope, it at least as likely as not (50 percent probability or greater) that such is due to and/or aggravated by his service-connected CAD. In providing such opinion, the examiner should address the 2017 VA examination findings. A complete rationale for all opinions proffered should be provided. M. M. Celli Acting Veterans Law Judge Board of Veterans’ Appeals M. Franklin, Attorney for the Board Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.