Citation Nr: 20056698 Decision Date: 08/27/20 Archive Date: 08/27/20 DOCKET NO. 17-63 105 DATE: August 27, 2020 ORDER New and material evidence has been received, the petition to reopen a claim of entitlement to service connection for hypertension is granted. REMANDED Entitlement to service connection for hypertension is remanded. FINDINGS OF FACTS 1. A June 2014 rating decision denied the petition to reopen claim for service connection for hypertension; the Veteran did not perfect an appeal or submit new and material evidence within one year of the decision. 2. Evidence submitted since the June 2014 rating decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for hypertension. CONCLUSIONS OF LAW 1. The June 2014 rating decision that denied the petition to reopen a claim for service connection for hypertension is final. 38 U.S.C. §§ 7105(c); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103. 2. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for hypertension. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from April 1985 to July 1993 and from February 2003 to August 2003. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2014 rating decision by a VA Regional Office (RO). In an April 2019 decision, the Board denied the petition to reopen the claim for service connection finding that new and material evidence had not been submitted. Subsequently, the Veteran appealed the Board's denial to the United States Court of Appeals for Veterans' Claims (CAVC), which pursuant to a February 2020 Joint Motion for Partial Remand (JMPR), vacated the Board's decision to the extent the Veteran's claim was denied, and remanded the matter to include the Veteran’s submitted evidence as new and material. Now, this matter returns for further appellate review. Service Connection As a threshold matter, the Board must determine whether new and material evidence has been submitted to reopen a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial) A rating decision becomes final when it has not been appealed within the prescribed time period and when no additional material evidence was received within a year of the decision; the decision is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In order to reopen a claim there must be added to the record "new and material evidence." 38 U.S.C. § 5108. 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. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension. The Veteran first claimed entitlement to service connection for hypertension in February 2014 and a June 2014 rating decision denied this claim. The RO found that the Veteran was not diagnosed with hypertension while in service nor was he diagnosed within a presumptive period after service. Thus, the RO determined that service connection was not entitled for hypertension because it neither occurred in nor was caused by service. Evidence considered in the June 2014 rating decision included service treatment records and VA treatment records. In July 2014, the Veteran was advised of the decision and his appellate rights. The Veteran filed a notice of disagreement in March 2015 and a statement of the case was issued in May 2016. However, the Veteran did not file a timely substantive appeal. No further communication regarding his claim of entitlement to service connection for hypertension was received until December 2016, when VA received his petition to reopen such claim. Therefore, the July 2014 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Moreover, no additional evidence was received within the one-year appeal period, and no additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(b), (c). Evidence received since the June 2014 rating decision included various private treatment and VA treatment records. In particular, the Veteran submitted evidence from San Mateo Family Practice, where his private physician stated that the Veteran has had elevated blood pressure since the early 1990’s while on military duty. The basis of the prior denial was that there was no evidence that his disability incurred in or was caused by service. This newly received evidence addresses the possibility of an in-service diagnosis of hypertension and a nexus. In 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. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Furthermore, the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). Therefore, the evidence is deemed new and material and the Board concludes that the claim for service connection for hypertension is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The Veteran contends that his hypertension began in service and continued thereafter. Service treatment records reflect blood pressure readings in May 1985, June 1987, July 1987, August 1987 and October 1990. In May 1985, days after his enlistment, the Veteran marked that he had high blood pressure on his dental health questionnaire. In June 1987, the Veteran complained about his blood pressure and was treated. His blood pressure was again monitored in July and August 1987. In October 1990, his blood pressure was noted without a complaint. Although, the service treatment records are silent to a definitive diagnosis of hypertension, his condition continued after his discharge. Furthermore, in his May 2014 correspondence, the Veteran states that he attached a letter to his initial February 2014 claim about his concern of being exposed to “Red-Lead” while in service. He believes this exposure has attributed to his disability. The letter was not found in the evidence of record and was not addressed by the RO. Besides this assertion, the Veteran has not specified an event or injury that may have caused his hypertension. In a January 2015 statement, the Veteran’s private doctor, Dr. E, mentioned that the Veteran had elevated blood pressure since the early 1990’s while on military duty. Thus, the Board concludes that the Veteran should be afforded a VA examination to determine the nature and etiology of his claimed hypertension and to address the Veteran’s lay statements including his exposure to “Red-Lead” and his medical records. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining any outstanding records, the Veteran should be afforded an appropriate VA examination to determine the etiology of his claimed hypertension. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The need for further physical examination is left to the discretion of the examiner. The examiner must provide an opinion regarding the following question: (A) Is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed hypertension is related to an in-service injury, event, or disease? The examiner should specifically address the Veteran’s in-service complaints of high blood pressure in June 1987, July 1987 and August 1987 and his statement about exposure to Red-Lead. (B) Did the Veteran’s hypertension manifest within one year of service discharge? The examiner should specifically address Dr. E’s statements that the Veteran complained of hypertension since the early 1990’s. The medical opinion obtained includes a complete rationale for the conclusions reached. Any 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; any medical opinion 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. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Adeyemi, 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.