Citation Nr: 20007563 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 16-25 568 DATE: January 29, 2020 ORDER New and material evidence having been received, the claim of entitlement to service connection for hypertension is reopened. Entitlement to service connection for hypertension, including as secondary to service-connected coronary artery disease, is granted. FINDINGS OF FACT 1. The Veteran did not submit a notice of disagreement (NOD) or substantive appeal (VA Form 9 or equivalent statement) in response to an earlier November 2013 rating decision considering and denying his claim of entitlement to service connection for hypertension. 2. Additional evidence since submitted or otherwise obtained, however, when considered with the record, as a whole, is neither cumulative nor redundant of the evidence of record at the time of that last prior final and binding denial and raises a reasonable possibility of substantiating this claim for service connection for hypertension. 3. The Veteran’s hypertension is caused or aggravated by his service-connected coronary artery disease. CONCLUSIONS OF LAW 1. The November 2013 rating decision earlier considering and denying the claim for service connection for hypertension is final and binding based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. 2. But there is new and material evidence since that decision to reopen this claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria are met for entitlement to service connection for hypertension since secondary to a service-connected disability, namely, the coronary artery disease. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to July 1969 and from December 1970 to December 1976. He testified in support of this claim during a recent November 2019 videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. 1. New and material evidence having been received, the claim of entitlement to service connection for hypertension is reopened. Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA 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 decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. In determining whether evidence is “new and material,” the credibility of the new evidence must be presumed unless inherently incredible or beyond the competency of the person making the assertion. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118 (2010). Regardless of the local regional office’s (RO’s) determination as to whether new and material evidence has been received, the Board must address this issue preliminarily, so in the first instance, because this initial determination affects the Board’s jurisdiction to reach the underlying claim to adjudicate it de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the claim and readjudicate it in light of all the evidence. Justus, 3 Vet. App. at 512 (1992). But once the claim is reopened, the presumption of credibility regarding this evidence no longer applies. Id. at 513.   If, on the other hand, the Board determines there is not the required new and material evidence to reopen the claim, that is where the analysis ends because further consideration of the claim is neither required nor permitted. See Barnett at 1384; see also Butler v. Brown, 9 Vet. App. 167, 171 (1996). The Veteran’s claim for service connection for hypertension was previously considered and denied in a November 2013 rating decision on the basis that this disability was not caused by his service. He did not appeal that decision nor was new and material evidence associated with the record within the next year. Accordingly, that November 2013 rating decision is final and binding based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. There is new and material evidence since that November 2013 rating decision, however, to reopen this claim. Namely, review of the record shows the Veteran submitted correspondence from Dr. A.B. in December 2019, so since the hearing, suggesting the Veteran’s hypertension might be secondary to his service-connected coronary artery disease. This evidence is both new and material to his claim for service connection for hypertension. This evidence was not before the RO at the time of the last final and binding denial of this claim, so not considered, and it is not cumulative or redundant of the evidence that was. It also raises a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Accordingly, the claim for service connection for hypertension is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156.   2. Entitlement to service connection for hypertension Service connection may be established on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b). Establishing entitlement to service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. The Board finds that these criteria are met for entitlement to service connection for the hypertension as secondary to the service-connected coronary artery disease. The Veteran has the required current diagnosis of hypertension and his coronary artery disease is an adjudicated service-connected disability. Thus, resolution of this appeal turns on whether this service-connected disability caused or is aggravating his hypertension. The Board held the record open following the recent November 2019 hearing to allow the Veteran time to obtain and submit evidence supporting this posited correlation between his service-connected coronary artery disease and hypertension. And, to this end, the Veteran submitted a supporting medical opinion from his VA primary care physician, Dr. A.B., in December 2019. This commenting physician indicated the Veteran’s hypertension is secondary to his service-connected coronary artery disease.   This private medical opinion is the only opinion in the record addressing entitlement to service connection on a secondary basis and it does so with a favorable outcome for the Veteran. Certainly then, it is as likely as not, if not even more likely than not, this posited correlation is true since there is no equally probative opinion to the contrary. Consequently, resolving all reasonable doubt in the Veteran’s favor, the Board finds this private physician’s opinion sufficient basis for accepting the posited correlation between the Veteran’s service-connected coronary artery disease and his hypertension. Thus, service connection for his hypertension, as secondary to the service-connected coronary artery disease, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mukherjee 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.