Citation Nr: 20006299 Decision Date: 01/28/20 Archive Date: 01/24/20 DOCKET NO. 19-21 794 DATE: January 28, 2020 ORDER New and material evidence having been received, the appeal to reopen a claim of entitlement to service connection for hypertension is granted. REMANDED Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. An August 2008 rating decision, in part, denied entitlement to service connection for hypertension; however, the Veteran did not timely file a notice of disagreement as to this issue and no new and material evidence was received during the appeal period. 2. Evidence received since the final August 2008 rating decision is new, relates to an unsubstantiated fact necessary to substantiate the claim for service connection for hypertension, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The August 2008 rating decision, which in part, denied a claim of entitlement to service connection for hypertension, is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence sufficient to reopen the previously denied claim of service connection for hypertension has been received. 38 U.S.C. § 5108 ; 38 C.F.R. §§ 3.156 (a), 20.1105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1965 to January 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2018 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). Additional evidence consisting of additional service records, was developed by VA in October 2019, subsequent to the most recent, July 2019 statement of the case issued for the appeal herein. The Veteran did not waive Agency of Original Jurisdiction (AOJ) review of this additional evidence; however, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. Here, the Veteran’s substantive appeal was filed after February 2, 2013, but as discussed above, the additional evidence was not submitted by the Veteran. Nonetheless, these additional service records are not relevant as they are cumulative of prior records which documented the Veteran served aboard the USS Oriskany. Thus, a remand for AOJ consideration is not warranted. Moreover, the Board also observes that as the Veteran’s claim for service connection for hypertension is reopened and remanded below for AOJ consideration on the merits, there is no prejudice to the Veteran by the Board’s adjudication of this appeal. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension Generally, a claim that has been denied in an unappealed decision may not be reopened and allowed. 38 U.S.C. § 7105. An 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 is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The Veteran’s claim for service connection for hypertension was previously finally denied. In this regard, an August 2008 rating decision, in pertinent part, denied service connection for hypertension and explained that based on the National Academies of Sciences (NAS) report, there was no evidence to support the presumption of service connection for hypertension due to herbicide exposure. The Veteran did not appeal the August 2008 rating decision as to this issue and no new and material evidence was received during the appeal period. The record also reflects that service personnel records were associated with the record in June 2017 and October 2019. However, the service records with the receipt date in June 2017 contain an April 2008 Personnel Information Exchange System (PIES) response and also bear an April 2008 receipt stamp. Further, the August 2008 rating decision explicitly referenced review of the Veteran’s personnel records. Moreover, review of the Veterans Benefits Management System (VBMS) reflects these records were uploaded in June 2017, and thus, this date is the scanning date rather than the date of receipt of these records. Thus, the evidence reflects that the service personnel records with a receipt date in June 2017 were, in fact, obtained in April 2008. Further, the service personnel records received in October 2019 are merely cumulative of the prior evidence, to include another April 2008 PIES response, which documented that the Veteran served aboard the USS Oriskany and provided the dates this ship was in the official waters of the Republic of Vietnam. Thus, these records contained facts that were never in question, and do not relate to hypertension, in-service herbicide exposure, or a nexus linking the Veteran’s current hypertension to his military service. The Federal Circuit has accepted that the term “relevant official service department record” in 38 C.F.R. § 3.156 (c)(1) means noncumulative and pertinent to the matter at issue in the case. See Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017). Thus, to the extent service records were not reviewed in conjunction with the prior denial in the August 2008 rating decision, the Board finds that the provisions of 38 C.F.R. § 3.156 (c) are inapplicable as to this claim. Thus, the August 2008 rating decision, which, in part, denied a claim of entitlement to service connection for hypertension, is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran has not submitted new and material evidence regarding this claim. However, in November 2018, the NAS upgraded hypertension to the “sufficient” category from “limited or suggestive,” indicating that there was enough epidemiologic evidence to conclude that there was a positive association between hypertension and herbicide exposure. See Veterans and Agent Orange: Update 11 (2018), https://www.ncbi.nlm.nih.gov/books/NBK535906/#sec_0000581. Accordingly, although in-service herbicide exposure had not been conceded, this evidence is new and material, and the claim for service connection for hypertension is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The Veteran’s service personnel records demonstrate that he served aboard the USS Oriskany between September 1965 and January 1968. As discussed above, an April 2008 PIES response documented the Veteran served aboard the USS Oriskany, and that this ship was in the official waters of the Republic of Vietnam from October 25, 1965 to November 27, 1965, from June 29, 1966 to July 29, 1966, from August 6, 1966 to September 8, 1966, from September 23, 1966 to October 26, 1966, from July 13 1967 to August 8, 1967, from August 17, 1967 to September 30 1967, from October 4, 1967 to November 3, 1967, from November 19, 1967 to December 17, 1967, and from December 30, 1967 to January 13, 1968. Notably, the April 2008 PIES response does not explain its definition of “official waters” of Vietnam; namely, whether such a finding indicates service within 12 nautical miles from the shores of Vietnam. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). Thus, remand is warranted for further development and determination by the AOJ in the first instance as to whether the Veteran had service within the 12 nautical mile territorial sea of the Republic of Vietnam based on his service aboard the USS Oriskany. The matters are REMANDED for the following actions: 1. Arrange for exhaustive development regarding the Veteran’s asserted in-service exposure to herbicide agents to determine whether the USS Oriskany was in the territorial seas within 12 nautical miles of Vietnam while the Veteran was aboard, in light of Procopio. Such action may include obtaining a further explanation of the definition of “official waters” as it relates to service in Vietnam as referenced in the April 2008 PIES response. 2. After undertaking any other development deemed appropriate, to include an examination if warranted, readjudicate the issue on appeal. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Espinoza, Counsel 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.