Citation Nr: 21001207 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 20-02 630 DATE: January 7, 2021 ORDER New and material evidence is received to warrant reopening of the claim of entitlement to service connection for hypertension. The appeal is granted to this extent only. REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus is remanded. FINDINGS OF FACT 1. By an April 2016 rating decision, the Veteran’s claim of entitlement to service connection for hypertension was denied. 2. Additional evidence is received which is not cumulative or redundant of the evidence of record at the time of the April 2016 rating decision and relates to an unestablished fact necessary to substantiate the claim for service connection for hypertension. CONCLUSIONS OF LAW 1. The April 2016 rating decision denying service connection for hypertension is final. 38 U.S.C. §§ 7104; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for hypertension, and the claim is reopened. 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 United States Army from February 1966 to December 1968. The Board notes that the Veteran’s claim of entitlement to service connection for coronary artery disease was granted in a November 2019 rating decision. As such, this issue is no longer on appeal and the Board does not have jurisdiction. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200 (2017). 1. New and material evidence is received to warrant reopening of the claim of entitlement to service connection for hypertension A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In the April 2016 rating decision, the Veteran’s claim for service connection was denied based on the finding that the Veteran’s hypertension was not incurred in or caused by service. At the time of that decision the pertinent evidence of record included the Veteran’s service treatment records, and VA and private treatment records. The evidence received since the April 2016 rating decision includes additional treatment records and a private medical opinion relating the Veteran’s hypertension to his service-connected diabetes mellitus. This evidence is new and material as it pertains to whether the Veteran’s hypertension is related to his active service, which is an unsubstantiated fact that is necessary to substantiate the claim. Therefore, the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection, to include secondary to service-connected diabetes mellitus The VA has a duty to assist, which includes providing a medical opinion when necessary to make a decision on a claim. 38 C.F.R. § 3.159(c)(4)(i) (2017). The Veteran’s representative contends that medical literature establishes a relationship between his service-connected diabetes mellitus and hypertension. In support of his contention, the Veteran provided an opinion from his treating physician, Dr. S.G., who opined that it is probable that hypertension is caused or contributed by the presence of diabetes with established renal effects well documented. See Third Party Correspondence January 4, 2018. The Board considered the opinion of Dr. S.G. but finds it inadequate for adjudication as it does not contain a medical explanation with supporting data to support its conclusion. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As such, a remand is necessary to obtain a VA medical opinion to discuss whether the Veteran’s hypertension is proximately due to, a result of, or aggravated by his service-connected diabetes. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Acquire updated VA and/or private treatment records. If such records are unavailable, the Veteran’s claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the Veteran’s claims file and comment on the following questions: (a.) Is it at least as likely as not (i.e., probability of 50 percent or higher) that hypertension is proximately due to or the result of the Veteran’s service-connected diabetes? (b.) If the answer to (a) is negative, is it at least as likely as not that hypertension is aggravated (i.e., permanently or temporarily worsened) by the service-connected diabetes? (c.) If aggravation is found, the examiner should address the following medical issues: 1) the baseline manifestations of the disorder found prior to aggravation; and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. The term “aggravation” means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examiner should consider and address the Veteran’s medical history and the opinion of Dr. S.G. opining that hypertension is caused or contributed by the presence of diabetes. If there is a medical basis to doubt the history provided, the examiner should provide a fully reasoned explanation. See Third Party Correspondence January 4, 2018. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A. Prinsen 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.