Citation Nr: 21064967 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 17-51 032 DATE: October 22, 2021 ORDER New and material evidence having been received, the claim for service connection for diabetes mellitus, to include as due to Agent Orange exposure, is reopened. Service connection for diabetes mellitus to include as due to Agent Orange exposure, is granted, subject to the laws and regulations governing the award of monetary benefits. A compensable rating for hypertension is denied. FINDINGS OF FACT 1. In a final June 2009 rating action, the Regional Office (RO) denied service connection for diabetes mellitus. 2. The evidence received since the final June 2009 rating action relates to an unestablished fact necessary to substantiate a claim for service connection for diabetes mellitus because it shows that the Veteran has conceded exposure to Agent Orange during his military service and has been diagnosed with diabetes mellitus. 3. During the appeal period, the Veteran's hypertension did not manifest in diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more. Also, the Veteran did not both have a history of diastolic pressure predominantly 100 or more and require continuous medication for control. CONCLUSIONS OF LAW 1. The criteria for reopening the Veteran's previously denied claim for service connection for diabetes mellitus have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for a compensable rating for service-connected hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.31, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Navy from February 1972 to June 1981, to include service aboard the USS Meyerkord from March 3, 1974 to October 14, 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). Of note, in September 2019, the Board stayed any action with respect to the issue of entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure in accordance with the Secretary of Veterans Affairs' directive to stay adjudication of all cases which may be affected by the Blue Water Navy Vietnam Veterans Act of 2019 (the Act), until the effective date of the Act, January 1, 2020. As the stay has been lifted, this issue is ripe for adjudication by the Board at this juncture. In July 2021, the Veteran testified at a hearing before the Board. New and Material Evidence Claim The Veteran seeks to reopen a previously denied claim for service connection for diabetes mellitus. Rating actions from which an appeal is not perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. A final decision cannot be reopened unless new and material evidence is presented. If VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of an appellant's claim in light of all the evidence, both new and old. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). VA regulation defines "new" as not previously submitted and "material" as related to an unestablished fact necessary to substantiate the claim. If the evidence is new and material, the next question is whether the evidence raises a reasonable possibility of substantiating the claim. The phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). By way of background, the AOJ denied the Veteran's original claim for service connection for diabetes mellitus in June 2009. Since the Veteran neither filed a timely appeal nor submitted new and material evidence within a year of that rating decision, the June 2009 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. VA received the Veteran's petition to reopen his previously denied claim for diabetes on July 27, 2015. In an August 2016 rating decision, the RO reopened the previosuly denied claim for service connection for diabetes, and denied the claim on the merits because the evidence did not show any in-country service in Vietnam or other exposure to herbicide agents during military service. The Veteran timely appealed. During his appeal, in August 2021, a VA memorandum indicated that based on the Veteran's nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23 exposure to herbicides is conceded. This evidence is both new and material, as it was not of record at the time of the July 2015 rating decision and relates to an unestablished fact necessary to decide the claim, specifically whether the Veteran was exposed to herbicide agents during his active service. Having reopened the claim for service connection for diabetes mellitus, the Board will address the merits of the claim below. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R.§ 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, service connection can be established based on herbicide exposure. 38 C.F.R. § 3.307(a)(6). A veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam is presumed to have been exposed to herbicides and the veteran is entitled to a presumption of service connection for certain diseases listed under 38 C.F.R. § 3.309(e). The Board also notes that in Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that veterans who "served in the 12 nautical mile territorial sea of the 'Republic of Vietnam" are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section's other requirements. As noted above, the RO has concluded that based on the Veteran's honorable service in the United States Navy, exposure to herbicide agents is conceded. See August 2021 VA Memorandum. November 2019 private treatment records and an October 2021 VA examination show the Veteran has a current diagnosis of Type 2 diabetes. 38 C.F.R. § 3.309(e) states that Type 2 diabetes is subject to presumptive service connection for Veteran's exposed to herbicide agents. As such, the Board concludes that the Veteran has a current disability that is related to his herbicide exposure during service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Therefore, service connection for diabetes mellitus, to include as due to herbicide exposure, is granted. Increased Rating The Veteran seeks a compensable rating for hypertension. Hypertension is rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, for hypertensive vascular disease (hypertension and isolated systolic hypertension). Under DC 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; it is the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. The term "predominant" is not defined in the rating criteria. Merriam-Webster defines predominant to mean "being most frequent or common." See, e.g., "predominant," Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary/predominant. For the reasons that follow, the Veteran's hypertension has not more nearly approximated the criteria corresponding to a 10 percent rating. The Veteran underwent a VA examination in January 2016. It was indicated that the Veteran's hypertension is controlled with continuous medication, and that the Veteran does not have a history of a diastolic blood pressure elevation of 100 mmHg or more. The blood pressure readings noted at the examination were 127/74 (September 2015), 121/66 (August 2015), and 140/80 (September 2014). The Veteran's average blood pressure reading was noted as 129/73. In May 2021, the Veteran underwent a VA examination. The blood pressure readings taken at the examination were 132/73, 135/73, 144/73. The Veteran's hypertension has been treated through VA. Throughout the appeal period, his hypertension has been controlled by medication. The Veteran has never had a diastolic reading above 100 mmHg and only one systolic reading above 160 mmHg, see September 2012 treatment record (showing blood pressure at 163/87). However, the Board finds this incident to be an acute flare of the Veteran's blood pressure. Moreover, a compensable rating would require the ratings over 160 to be predominant, which a single rating would not show. Other readings show diastolic readings consistently below 100 mmHg and systolic readings below 155 mmHg, see September 2013 treatment record (showing blood pressure at 154/82); March 2014 treatment record (showing blood pressure 137/76); August 2015 treatment record (showing blood pressure at 121/66); August 2016 treatment record (showing blood pressure at 122/60); September 2017 treatment record (showing blood pressure at 126/69); February 2018 treatment record (showing blood pressure at 150/76); November 2019 treatment record (showing blood pressure at 131/65). There is no indication that the Veteran has predominantly had diastolic readings of 100 mmHg or more or systolic readings of 160 mmHg or more during the appeal. Accordingly, the Board finds that the Veteran's diastolic readings have not been predominantly 100 mmHg or more, his systolic readings have not been predominantly 160 mmHg or more, and the Veteran has not had a history of diastolic readings predominantly 100 mmHg or more. In every instance where the rating schedule does not provide a 0 percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. As the criteria for a 10 percent rating under DC 7101 are not met, a noncompensable rating is warranted. See 38 C.F.R. § 4.31. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jennifer M. Narvaez, 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.