Citation Nr: 21062217 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-26 217 DATE: October 6, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II, is reopened. Entitlement to service connection to hypertension, as secondary to service-connected diabetes mellitus, type II, is granted. FINDINGS OF FACT 1. A June 2015 rating decision denied the Veteran's claim for service connection for hypertension. The Veteran was notified of this decision and of his appellate rights by a letter dated June 26, 2015. He did not appeal. 2. Additional evidence received since the June 2015 rating decision is neither cumulative nor redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the claim for service connection for hypertension. 3. The evidence is in relative equipoise as to whether the Veteran's hypertension is proximately due to his service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The June 2015 rating decision is final regarding the claim for service connection for hypertension. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been submitted to reopen the claim for service connection for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Resolving reasonable doubt in the Appellant's favor, the criteria for service connection for hypertension as secondary to diabetes mellitus, type II are met. 38 U.S.C. §§ 1110, 5107, 5121, 5121A; 38 C.F.R. §§ 3.102, 3.310, 3.1000, 3.1010. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to April 1970. He died in January 2017. For the Veteran's service, he was awarded the Vietnam Service Medal, Vietnam Campaign Medal, and Bronze Star Medal. The Appellant is the surviving spouse of the Veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision. In May 2021, the Appellant and a witness testified before the undersigned Veterans Law Judge (VLJ) at a tele-hearing. A transcript of that hearing is of record. The June 2016 rating decision determined that new and material evidence had not been submitted sufficient to reopen the claim for service connection for hypertension. The rating decision also denied the claim on the merits. The May 2017 statement of the case denied the claim on the merits as well. Despite the above findings, the Board must determine of its own accord whether new and material evidence is of record to reopen the claim before it may consider it on the merits. Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). The Appellant submitted a VA Form 21P-534EZ, Application for DIC, Death Pension, and/or Accrued Benefits in February 2017. The Appellant indicated that she was claiming Dependency and Indemnity Compensation (DIC) and Accrued Benefits. The Agency of Original Jurisdiction (AOJ) granted the Appellant's claim for service connection for the cause of the Veteran's death in a March 2017 rating decision. A May 2017 Statement of the Case denied the Appellant's claim for service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II. The Appellant submitted a VA Form 9, Appeal to the Board of Veterans' Appeals in May 2017. At the time of the Veteran's death in February 2017, his claim for service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II was pending. Concerning accrued benefits, periodic monetary benefits under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death and due and unpaid, shall, upon the death of such individual be paid to the Veteran's spouse. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. In addition, under the Veterans Benefits Improvement Act of 2008, if a Veteran dies on or after October 10, 2008, while a claim for any benefit under a law administered by the Secretary of Veterans Affairs, or an appeal of a decision with respect to such a claim, is pending, a living person who is eligible to receive accrued benefits under 38 U.S.C. § 5121(a) may, not later than one year after the date of the death of the Veteran, file a request to be substituted as the claimant for the purposes of processing the claim to completion. See 38 U.S.C. § 5121A. Typically, VA may consider only the evidence of record at the time of the Veteran's death in an accrued benefits claim. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a), (d)(4). Evidence in the file at date of death means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not located physically in the VA claims file on or before the date of death. 38 C.F.R. § 3.1000(d)(4). Substitution differs from a traditional accrued benefits claim in that additional evidence and argument may be added to the claims file following the death of the Veteran. VA also is responsible for obtaining any additional evidence required and addressing notice or due process defects in the same manner as if the original claimant were still alive. Cf. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. Importantly, a VA Form 21-534 is accepted as both a claim for accrued benefits and a substitution request. See VBA Fast Letter 10-30 (Aug. 10, 2010). In the absence of a specific request to substitute, VA is to treat qualifying death claims as requests to substitute. 38 C.F.R. § 3.1010(c)(2). As such, a claim for accrued benefits and a substitution request was received by VA in February 2017. Although there was no formal substitution decision, it appears that the AOJ recognized the Appellant as a substitute claimant based on the procedure of the case. As such, the Appellant is a valid substitute claimant for the Veteran as to the issue of service connection for hypertension. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. 1. New and material evidence having been received, the claim for entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II, is reopened. A determination on a claim by the AOJ of which the claimant is properly notified is final if no notice of disagreement is filed within the prescribed time period, or an appeal is not perfected pursuant to 38 C.F.R. § 20.302. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; see 38 C.F.R. §§ 20.200, 20.201, 20.302 (setting forth requirements and timeframe for initiating and perfecting an appeal). To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for that denial. See 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 282-83 (1996) (holding that § 5108 requires a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened). VA regulation defines "new and material evidence" as follows: "New evidence" means evidence not previously submitted to agency decision makers, and "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. 38 C.F.R. § 3.156(a), Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). To warrant reopening, the new evidence must neither be 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); see Shade, 24 Vet. App. at 117 (holding that there is a "low threshold" for reopening). When determining whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). If new and material evidence is received within one year after the date of mailing of a decision by the AOJ, it prevents that decision from becoming final and will be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period." 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (holding that new and material evidence received within one year of a decision by the AOJ prevents that decision from becoming final); 38 C.F.R. § 3.400(q) (providing that, as to new and material evidence received within appeal period, "effective date will be as though the former decision had not been rendered"). A June 2015 rating decision denied the Veteran's claim for service connection for hypertension. The Veteran was notified of this decision and of his appellate rights by a letter dated June 26, 2015. New and material evidence was not received within one year after the date of mailing of a decision. Accordingly, the June 2015 rating decision is final concerning this claim. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran submitted a petition to reopen his claim for service connection in March 2016. See VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits. The Veteran died in January 2017 and his spouse is now a substitute claimant. During the May 2021 hearing, the Appellant advised that the Veteran had symptoms of diabetes prior to his diagnosis that included swollen feet, excessive thirst, and fatigue. This evidence was not of record at the time of the June 2015 rating decision and relates to unestablished facts necessary to support the claim for service connection, namely a link between the Veteran's hypertension and his diabetes mellitus, type II. Thus, the Board finds the evidence is both new and material. See 38 C.F.R. § 3.156(a); see also 38 C.F.R. § 3.303; Shade, 24 Vet. App. at 122. Therefore, the claim for service connection for hypertension is reopened. 2. Entitlement to service connection to hypertension, to include as secondary to service-connected diabetes mellitus, type II for substitution purposes is granted. Service connection means that a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "medical nexus" between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see 38 C.F.R. § 3.303(a). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including hypertension, if the chronic disease manifested in service, then service connection will be established for subsequent manifestations of the same chronic disease at any date after service, no matter how remote, without having to show a causal relationship or medical nexus, unless the later manifestations are clearly due to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that § 3.303(b) only applies to the chronic diseases listed in 38 U.S.C. § 1101 § 3.309(a)). When the condition noted during service is not shown to be chronic, or its chronicity may be legitimately questioned, then a continuity of symptoms after service must be shown to establish service connection under this provision. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1338-39 (observing that a continuity of symptoms after service is a relaxed evidentiary showing that itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period"). To establish service connection based on a continuity of symptoms under § 3.303(b), the evidence must show: (1) a condition "noted" during service; (2) post-service continuity of the same symptoms; and (3) a nexus between the present disability and the post-service symptoms. Fountain v. McDonald, 27 Vet. App. 258, 263-64 (2015). In addition, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, there is a presumption of service connection for diabetes mellitus or hypertension if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). Service connection may also be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires: (1) competent evidence of current disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either: (a) caused by; or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Prior to his death, the Veteran had a diagnosis of hypertension. See October 2007 VA Attending Note. Additional VA treatment records reflect a continuing diagnosis of hypertension prior to his death. The November 2011 VA Diabetes Mellitus Disability Benefits Questionnaire states that the Veteran was diagnosed with hypertension prior to 2007. A May 2015 VA Hypertension Disability Benefits Questionnaire provides that the Veteran has a diagnosis of hypertension and the date of diagnosis is unknown. Therefore, the Veteran had a current disability of hypertension during the pendency of the claim for service connection. The Veteran advised that he was exposed to herbicide agents during his service in the Republic of Vietnam prior to his death. See June 2011 VA Form 21-4138, Statement In Support of Claim. After service, his blood sugar and blood pressure began to rise slightly each year. Id. He was borderline diabetic for many years and later developed diabetes. Id. He also stated that he has had very low energy for five years. Id. During the May 2021 hearing, the Appellant advised that the Veteran had symptoms of diabetes prior to his diagnosis that included swollen feet, excessive thirst, and fatigue. Because the Veteran and the Appellant have not been shown to have a medical background or expertise, they are considered laypeople in the field of medicine. Lay testimony is competent as to matters capable of lay observation or within a person's first-hand experience and may be competent evidence with respect to both the diagnosis of a medical condition and its etiology or cause. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). However, lay testimony is not competent with respect to determinations that cannot be made based on lay observation alone due to their medical or scientific complexity. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). The Board must determine on a case-by-case basis whether lay testimony is competent on the matter at issue, or whether medical evidence is required. See Davidson, 581 F.3d at 1316 (holding that it was error to reject categorically lay statements on the issue of medical nexus, or to make a categorical finding that a medical opinion was required); Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without assessing its competence). Therefore, the statements from the Veteran and the Appellant concerning the symptomatology relating to his hypertension and diabetes mellitus, type II, and their onset are competent as they are observable. The Board additionally finds these competent statements concerning his symptomatology and their onset to be credible, as they are have remained generally consistent throughout the pendency of this claim. See Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table) (holding that, in determining whether statements submitted by or on behalf of a claimant are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). Thus, the focus of the matter is whether the Veteran's service-connected diabetes mellitus, type II, proximately caused his hypertension or aggravated it beyond its natural progression. The Board notes that the primary reasoning behind the medical opinions disassociating the Veteran's hypertension and diabetes mellitus, type II is that his hypertension predated his diabetes mellitus, type II. A February 2009 VA Eye Consult states that the Veteran's diabetes began in February 2007 per reporting from the Veteran and that the exact date is unknown. The November 2011 VA examination report provides that the Veteran has a diagnosis of diabetes mellitus, type II and the date of diagnosis is listed as May 12, 2010. An April 2014 VA Eye Consult states that the Veteran's diabetes began August 15, 2008 per chart documentation. A May 2015 VA Diabetes Mellitus Disability Benefits Questionnaire also indicates that the date of the diagnosis for the Veteran's diabetes mellitus, type II is August 2008. A May 2016 Diabetes Mellitus Disability Benefits Questionnaire states that the Veteran's diabetes mellitus, type II began in 2008 and that his symptoms began 12 years ago, or 2004. A November 2016 VA Endocrinology Consult demonstrates that the Veteran reported being diagnosed with diabetes in 2004. November 2011, May 2015, and May 2016 examination reports do not demonstrate that the Veteran's hypertension is caused by or permanently aggravated by his diabetes mellitus, type II. A June 2015 VA medical opinion states that in the absence of end stage renal disease, the Veteran's hypertension is neither proximately due to, or the result of, or aggravated beyond its natural progression by his diabetes mellitus. The Board finds that June 2015 VA medical opinion is inadequate because it is conclusory and without sufficient rationale. See Barr, 21 Vet. App. at 312 (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The VA medical opinion does not explain why the presence of end stage renal disease is necessary for the Veteran's diabetes mellitus, type II to cause or aggravate his hypertension. An April 2017 VA medical opinion states that it is less likely than not that the Veteran's hypertension was proximately caused by or permanently aggravated by his service-connected diabetes mellitus, type II. In support, the medical opinion indicates that the Veteran's hypertension preceded the onset of his diabetes mellitus. The Veteran had a diagnosis of and treatment for hypertension in 2007 and he did not have diabetes mellitus at that time. He began having elevated blood sugars in 2008 after a weight gain of 20 pounds, and later that same year was diagnosed with diabetes mellitus. Further, there is no evidence of a permanent aggravation of hypertension as there is some elevation of his blood pressure readings in early 2012, which correspond to an initial diagnosis and treatment of malignant melanoma, not with diabetes mellitus. The Board acknowledges that the April 2017 VA medical determined that the Veteran's hypertension was not proximately caused by his service-connected diabetes mellitus, type II. However, the medical opinion fails to account for the competent and credible statements from the Veteran and Appellant regarding the onset and presence of his diabetes and related symptomatology, and therefore lack probative value. See Wilson v. Derwinski, 2 Vet. App. 614 (1992) (The Board is free to assess medical evidence and is not obligated to accept a physician's opinion.). Therefore, the medical opinion forms an inadequate basis upon which to base a denial of entitlement to service connection. Regarding whether the Veteran's hypertension was aggravated beyond its natural progression by his service-connected diabetes mellitus, type II, the Board finds that the April 2017 VA medical opinion and November 2011, May 2015, and May 2016 examination reports are inadequate. See Barr, 21 Vet. App. at 312. The above evidence found that it was less likely than not that the Veteran's hypertension was permanently aggravated beyond its natural progression by his service-connected diabetes mellitus, type II. However, the "aggravation" standard under 38 C.F.R. § 3.310 does not require "permanent" worsening of a condition and can be satisfied by showing an incremental increase in disability. Ward v. Wilkie, 31 Vet. App. 233 (2019). An October 2014 Diabetes Mellitus Disability Benefits Questionnaire completed by his treating private physician, F.P., M.D., states that the Veteran's hypertension is at least as likely as not due to and aggravated by his service-connected diabetes mellitus, type II. The Board finds the determination by F.P., M.D., in October 2014 to be especially probative. Although there is no "treating physician rule" requiring the Board to give additional evidentiary weight to the opinion of a physician or other healthcare provider that has treated the Veteran, such a clinician does have an intimate knowledge of the severity of his condition over a span of time and his reported medical history. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993); Chisem v. Brown, 4 Vet. App. 169 (1993) (noting that there is no "treating physician rule" requiring the Board to give additional evidentiary weight to opinions of doctors who have evaluated or treated the Veteran over time, but it is permissible for the Board to bear this length of treatment in mind when considering just how familiar with the Veteran's condition the clinician may be). Based on the above medical evidence, the criteria for secondary service connection for hypertension has been met, as this disability has been shown to be proximately due to his service-connected diabetes mellitus, type II. See 38 C.F.R. § 3.310(a). Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Appellant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Therefore, the benefit of the doubt must be resolved in favor of the Appellant and entitlement to service connection for the Veteran's hypertension as secondary to his service-connected diabetes mellitus, type II, for substitution purposes is granted. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mussey, Sean 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.