Citation Nr: 20021031 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 14-38 915A DATE: March 24, 2020 ORDER The petition to reopen the previously denied claim for hypertension is granted. REMANDED Entitlement to service connection for hypertension is remanded. FINDING OF FACT An unappealed March 2010 rating decision denied entitlement to service connection for hypertension; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. CONCLUSION OF LAW The March 2010 rating decision denying the claim for service connection for hypertension is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156(a), 20.302, 20.1103 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1968 to February 1970. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In May 2018, the Board remanded the claim of entitlement to service connection for hypertension for further development. The claim was again remanded by the Board in May 2019. The Board finds that there has been substantial compliance with its prior remands. See Stegall v. West, 11 Vet. App. 268 (1998). For reasons explained below, the Board has characterized the Veteran’s claim for service connection for hypertension as requiring new and material evidence to reopen. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for hypertension. Generally, a claim that has been denied in an unappealed RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C. § 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 is defined as existing evidence not previously submitted to agency decision makers. 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). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The Board concludes that the March 2010 rating decision denying the claim for service connection for hypertension is final; and that new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156(a), 20.302, 20.1103 (2018). A March 2010 rating decision denied service connection for hypertension because the evidence of record showed that the Veteran’s hypertension was not occurred in or caused by service. The rating decision additionally found that service connection for hypertension, as secondary to diabetes mellitus, was not warranted as service connection for diabetes mellitus had not been established. VA notified the Veteran of this decision in an April 2010 letter and how to appeal. The Veteran filed a timely notice of disagreement in May 2010. A statement of the case (SOC) was issued in December 2012. The SOC continued denial of service connection for hypertension. The Veteran was notified of that decision but did not initiate an appeal within 60 days of the SOC and new and material evidence was not received within 60 days of the notice of the SOC or one year of the rating decision. In addition, in December 2012, VA received written correspondence from the Veteran’s representative requesting withdrawal of the claim of service connection for hypertension. See Third Party Correspondence (December 2012). Accordingly, the March 2010 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Evidence associated with the claims file since the prior final disallowance includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claims. In this regard, the record reflects that the Veteran raised a new theory of entitlement to service connection for hypertension (i.e. claiming secondary service connection to his service-connected posttraumatic stress disorder (PTSD)). A new theory of entitlement, alone, may not serve as a basis to reopen the matter unless it is accompanied by new and material evidence supporting that theory. Velez v. Shinseki, 23 Vet. App. 199 (2009); Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008) (While a new theory of entitlement cannot be the basis to reopen a claim under 38 U.S.C. § 7104(b), if the evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim under section 5108). In this case, the Veteran has submitted various medical articles linking hypertension to PTSD. See, e.g., Web/HTML Documents (December 2014). This evidence was not previously considered by decision-makers and tends to support the Veteran’s theory of entitlement. Therefore, as a prior evidentiary defect has been cured, the recent evidentiary submissions are considered new and material. Accordingly, the petition to reopen the claim is granted. REASONS FOR REMAND Entitlement to service connection for hypertension is remanded. The Veteran, and his representative, contends that his hypertension is secondary to his service-connected PTSD. In this regard, the Veteran maintains that medication taken for his service-connected PTSD led to obesity, and subsequently his hypertension. In the alternative, the Veteran also argues that his hypertension is directly related to service, to include in-service herbicide agent exposure. For reasons explained below, the Board finds that remand is necessary. VA examination report, dated in December 2013, reflects that the Veteran reported that Seroquel (medication taken for his service-connected PTSD) led to weight gain and subsequently caused his hypertension. In the corresponding VA medical opinion, dated in December 2013, the examiner concluded that the Veteran’s hypertension was not caused by his service-connected PTSD or by medication taken for his PTSD. The Board finds the VA medical opinion inadequate for adjudicative purposes. Hayes v. Brown, 5 Vet. App. 60, 69 (1993). Although the opinion concluded that the PTSD medication did not cause the Veteran’s obesity, there is no finding or conclusion on whether the PTSD medication aggravated his obesity. See Walsh v. Wilkie, No. 18-0495, 2020 Vet. App. LEXIS 295, at *1 (Vet. App. Feb. 24, 2020) (holding that a veteran is entitled to disability compensation when a service-connected disability causes or aggravates his obesity). The Board notes that obesity is not a disability for purposes of VA benefits; hence, it cannot be service connected on a direct basis. See Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018). However, indirect secondary service connection can be granted with obesity acting as an “intermediate step.” See VAOPGCPREC 1 2017 (Jan. 6, 2017). Specifically, a grant is warranted (1) if the service-connected disability caused or aggravated the obesity, (2) if obesity was a substantial factor in causing a subsequent disability, and (3) if the subsequent disability would not have occurred but for obesity. Id. Given that the December 2013 VA medical opinion is inadequate, remand is necessary. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matter is REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for symptoms of his hypertension, to include St. Vincent’s Medical Center. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records for the period from February 2020 to the Present. 3. Obtain a medical opinion from an appropriate clinician on the etiology of his hypertension. The clinician must provide an opinion to the following questions with consideration of the February 2020, December 2018, and December 2013 medical opinions. The clinician should also consider relevant medical literature (note that the claims file contains articles received in 2014 from the Veteran linking hypertension to PTSD), and clinical history to include weight and weight changes prior to and after the diagnosis/treatment of hypertension. (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s PTSD, to specifically include medication taken for the PTSD, (i) caused or (ii) aggravated the Veteran’s obesity? (b) If so, was the resulting obesity a substantial factor in causing the Veteran’s hypertension? (c) If yes, but for the Veteran’s obesity, would the Veteran have developed hypertension? 4. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffey, Associate 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.