Citation Nr: 21061498 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 20-27 345 DATE: October 4, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for hypertension is granted. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for a kidney disability is granted. Entitlement to service connection for hypertension is granted. Entitlement to service connection for a kidney disability is granted. FINDINGS OF FACT 1. In a February 2017 rating decision, the RO denied the Veteran's claims of service connection for hypertension and hypertensive renal disease. Although he was duly notified of the RO's decision and his appellate rights, the Veteran did not initiate an appeal within the applicable time period nor was new and material evidence received within one year. 2. Evidence received since the final February 2017 rating decision denying entitlement to service connection for hypertension and hypertensive renal disease relates to an unestablished fact necessary to substantiate the claims and, presuming its credibility, raises a reasonable possibility of substantiating the claims for service connection for hypertension and a kidney disability. 3. The evidence is in equipoise as to whether the Veteran's hypertension is causally related to active duty. 4. The evidence is in equipoise as to whether the Veteran's kidney disability is causally related to active duty. CONCLUSIONS OF LAW 1. The February 2017 rating decision denying service connection for hypertension and hypertensive renal disease is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to warrant reopening of the claims of service connection for hypertension and hypertensive renal disease. 38 U.S.C. § 5107, 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for hypertension have been met. 38U.S.C. §§1110, 5107; 38C.F.R. §3.102, 3.303. 4. The criteria for entitlement to service connection for a kidney disability have been met. 38U.S.C. §§1110, 5107; 38C.F.R. §3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to May 1970, including service in the Republic of Vietnam. He is the recipient of the Combat Infantryman Badge, among other commendations. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, denied service connection for hypertension because the evidence submitted was not new and material and denied service connection for chronic kidney disease. In July 2021, the Veteran testified at a tele-hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board notes that the Veteran's notice of disagreement (NOD) included a service connection claim for prostate cancer. In an April 2020 rating decision, the RO granted service connection for prostate cancer and assigned a 100 percent rating, effective August 30, 2018. The award of service connection for prostate cancer constitutes a full grant of the disability sought, and that appeal has been resolved. See Grantham v. Brown, 114 F.3d 1156 (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). As noted above, the final February 2017 rating decision, inter alia, denied service connection for hypertensive renal disease. As set forth below, to the extent that hypertensive renal disease is part of the current claim for chronic kidney disease, the Board is reopening the claim and addressing the Veteran's condition more broadly as a claim for a kidney disability on the merits. In light of the decision below, no prejudice to the Veteran has resulted. The Board observes that in addition to the issues discussed immediately above, the Veteran currently has other appeals pending. Those issues are part of a separate appeal stream and will be the subject of a future Board decision, if otherwise in order. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims to reopen such as this one, filed on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decision makers. 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. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See 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 evidence is inherently incredible or beyond competence of witness). 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 submitted 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, to include by triggering the Secretary's duty to assist. Id. at 118; but see Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). 1. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for hypertension is granted. 2. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for a kidney disability is granted. In May 2016, the Veteran, inter alia, submitted a claim of service connection for hypertension. In an October 2016 rating decision, the RO denied the claim, finding that the evidence did not show that the condition was incurred in or caused by service or associated with herbicide exposure. The RO considered the Veteran's service treatment records (STRs), which were negative for complaints, treatment, or diagnosis of hypertension. Additionally, the RO considered medical records which failed to note that the condition manifested within 1 year of separation from active duty. The RO notified the Veteran of the decision in an October 2016 letter. In January 2017, the Veteran filed a claim for reconsideration and submitted a positive nexus letter indicating that his hypertension was related to herbicide and other chemical exposure in Vietnam, as well as a new claim for service connection for hypertensive renal disease. In a February 2017 rating decision, the RO reopened the Veteran's hypertension claim and denied it on the merits. In addition, the RO denied the claim for hypertensive renal disease. The Veteran was duly notified of the RO's decision and his appellate rights. He did not, however, initiate an appeal within the applicable time period nor was new and material evidence received within one year of notification of the February 2017 rating decision. The Veteran and his attorney do not contend otherwise. Thus, the February 2017 rating decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this appeal, the Veteran seeks to reopen his claim of service connection for hypertension and a kidney disability, to the extent that hypertensive renal disease is part of the current claim for chronic kidney disease. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. In order to determine whether new and material evidence has been received, the Board has reviewed the entire record, with particular attention to the additional evidence received since the final February 2017 rating decision. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156. The additional evidence received since the February 2017 rating decision includes a positive nexus opinion from Dr. H.F. dated in August 2018 indicating that the Veteran's hypertension and chronic kidney disease were related to herbicide and other chemical exposure in Vietnam. See correspondence received in August 2018. The additional evidence also includes Disability Benefits Questionnaires (DBQs) completed by Dr. H.F. dated in October 2018 which noted diagnoses of hypertension and hypertensive renal disease for more than 30 years and chronic kidney disease for more than 10 years. It was also noted that the Veteran's malignant hypertension, which required 5 to 6 medications to control, eventually led to the development of chronic kidney disease. See October 2018 Hypertension and Kidney Conditions DBQs received in June 2019. Also received since the last final rating decision was medical literature which cited a National Academies of Sciences, Engineering and Medicine (NAS) study which recently upgraded hypertension from its previous classification in the category of "limited or suggestive" evidence to "sufficient" evidence of an association with exposure to Agent Orange and other herbicides used during the Vietnam War. See medical literature received in October 2019. The additional evidence also includes the Veteran's July 2021 Board hearing testimony to the effect that he believed that his hypertension and kidney disease were caused by his service as an infantryman in Vietnam. See July 2021 Transcript of Hearing, page 6. After reviewing the record, the Board finds that new and material evidence has been received sufficient to reopen the claim. Specifically, the positive nexus opinion indicating that the Veteran's chronic kidney disease was related to herbicide and other chemical exposure in Vietnam, as well as medical literature citing a NAS study which recently upgraded hypertension from its previous classification in the category of "limited or suggestive" evidence to "sufficient" evidence of an association with exposure to Agent Orange and other herbicides used during the Vietnam War, were not before agency decision-makers at the time of the February 2017 rating decision. These records are therefore new, and directly address unestablished facts necessary to substantiate the claims of service connection for hypertension and a kidney disability, particularly evidence of causation. When presumed credible, they raise a reasonable possibility of substantiating the claims and trigger the VA's duty to assist. Accordingly, the standards under 3.156(a) have been met and the claims are reopened. See Shade, 24 Vet. App. at 117. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38U.S.C. §1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38C.F.R. §3.303(d). Service connection for certain chronic diseases, including cardiovascular-renal disease including hypertension, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, service connection is presumed for certain diseases, not currently including hypertension or kidney disease, if a veteran was exposed to an herbicide agent, such as Agent Orange, during active service if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Exposure to Agent Orange is presumed for veterans who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii). Despite the presumptive regulations, a claimant may establish service connection based on exposure to Agent Orange with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for hypertension is granted. 4. Entitlement to service connection for a kidney disability is granted. The Veteran contends that his current hypertension and kidney disability are due to herbicide agent exposure during active duty. The Veteran's STRs are negative for complaints, observations, or treatment regarding hypertension or a kidney disability. A December 2015 DBQ completed by a private physician, Dr. H.F., noted, inter alia, that the Veteran was diagnosed with hypertension in the early 1980s. The physician indicated that the Veteran's "resistant" hypertension was difficult to control and required 4 medications. See December 2015 DBQ received in September 2016. In correspondence dated in January 2017, the Veteran's private physician, Dr. H.F., indicated that the Veteran took 6 different medications for severe malignant hypertension. The physician noted that the Veteran also had a diagnosis of hypertensive renal disease. The physician opined that it was as likely as not that the development and severity of the Veteran's hypertensive cardiovascular disease was related to herbicide and other chemical exposure while serving in Vietnam. See correspondence received in January 2017. In correspondence dated in August 2018, Dr. H.F. opined that the Veteran's hypertensive cardiovascular disease and chronic kidney disease were as likely as not related to herbicide and other chemical exposure while serving in Vietnam. See correspondence received in August 2018. In October 2018 DBQs, Dr. H.F. noted that the Veteran had diagnoses of hypertension and hypertensive renal disease for more than 30 years and chronic kidney disease for more than 10 years. The physician indicated that the Veteran's malignant hypertension, which required 5 to 6 medications to control, eventually led to the development of chronic kidney disease. See October 2018 Hypertension and Kidney Conditions DBQs received in June 2019. In support of his claim, the Veteran submitted medical literature which cited a National Academies of Sciences, Engineering and Medicine (NAS) study which recently upgraded hypertension from its previous classification in the category of "limited or suggestive" evidence to "sufficient" evidence of an association with exposure to Agent Orange and other herbicides used during the Vietnam War and stated that this category "indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. See medical literature received in October 2019. At the July 2021 Board hearing, noted above, the Veteran testified that he believed that his hypertension and kidney disease were caused by his service as an infantryman in Vietnam. See July 2021 Transcript of Hearing, page 6. After a review of the evidence, the Board finds that service connection is warranted for hypertension and a kidney disability. With regard to the first element of a service connection claim, the evidence shows that the Veteran has current diagnoses of hypertension and a kidney disability. The December 2015 and October 2018 DBQs, referenced above, noted diagnoses of hypertension, hypertensive renal disease, and chronic kidney disease. In addressing the second element, the Board notes that the Veteran had service in the Republic of Vietnam. Therefore, the Veteran is presumed to have been exposed to herbicide agents, such as Agent Orange, during active duty. See 38 C.F.R. § 3.307 (a)(6)(iii). With respect to the third element, the nexus requirement, the Board finds that the evidence is in relative equipoise as to whether the Veteran's current hypertension and kidney disability are causally related to herbicide agent exposure during active duty. The Board finds the January 2017 and August 2018 positive nexus opinions from Dr. H.F. of great probative weight, as they were rendered after eliciting a detailed history from the Veteran and during the course of his continued treatment of the Veteran's symptomatology. There is no medical opinion evidence to the contrary. Accordingly, the Board has weighed the probative evidence of record and finds that the evidence is at least in relative equipoise as to the Veteran's current hypertension and kidney disability and the causal relation between the Veteran's disabilities and the in-service herbicide exposure. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board will resolve the reasonable doubt in the Veteran's favor and find that the evidence supports the grant of service connection for hypertension and a kidney disability. See 38 U.S.C. § 5107. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ruddy, 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.