Citation Nr: 21066213 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 15-46 174 DATE: October 29, 2021 ORDER New and material evidence is received, and the claim of entitlement to service connection for hypertension is reopened; the appeal is granted to this extent only. REMANDED Entitlement to service connection for hypertension is remanded. FINDING OF FACT Most recently, an unappealed August 2009 Board decision reopened and denied the Veteran's claim for service connection for hypertension. Evidence received since the August 2009 Board decision relates to an unestablished fact necessary to reopen the claim. CONCLUSION OF LAW The August 2009 Board decision which denied service connection for hypertension is final. New and material evidence was received since the August 2009 Board decision and the requirements to reopen the claim of entitlement to service connection for hypertension are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1983 to March 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and were previously remanded by the Board in March 2019. In an August 2020 decision, the Board denied the Veteran's claim to reopen his claim for service connection for hypertension. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In June 2021, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the portion of the August 2020 Board decision that denied reopening the Veteran's claim for service connection for hypertension, and remanded the matter for action consistent with terms of the JMPR. As noted in the JMPR, the Veteran does not wish to appeal the remaining claims that were denied by the Board in its August 2020 decision, to include, the claims to reopen the claims of entitlement to service connection for right and left ankle disorders, right and left knee disorders, headaches, and flatfeet; the claims of entitlement to service connection for sleep apnea and diabetes mellitus; and increased rating claims for right eye conjunctivitis prior to April 10, 2013 and from April 10, 2013. Claim to Reopen To reopen a claim which has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 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). Moreover, in determining whether that low threshold is met, consideration need not be limited to consideration of 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, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. The claim to reopen the claim of entitlement to service connection for hypertension An August 2009 Board decision denied service connection for hypertension based on a finding that the evidence of record at the time failed to show that this disability manifested to a compensable degree within one year after separation from service, nor did it show a nexus linking a diagnosis to service. The Veteran did not appeal the decision, and it became final. In July 2011, the Veteran requested that his claim be reopened, and in July 2012, the RO denied the claim. As such, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claim of entitlement to service connection for hypertension. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board finds that new and material evidence has been presented to reopen the claim. Evidence added to the claims file subsequent to the August 2009 rating decision includes post-service VA and private treatment records and lay statements from the Veteran. This evidence is new since it is neither cumulative nor redundant of the evidence that was of record in August 2009. Post-service private treatment records from 2017 and 2019 reflect a private medical opinion suggesting that the Veteran's hypertension existed during service. This evidence is material because, accepting the evidence as credible for the purpose of reopening the claim, the evidence tends to suggest a possible nexus between the Veteran's currently diagnosed hypertension and military service. Thus, the Board finds that new and material evidence has been submitted and the petition to reopen the claim of entitlement to service connection for hypertension must be granted. REASONS FOR REMAND Entitlement to service connection for hypertension is remanded. The Veteran contends that his claimed hypertension originated in service. His service treatment records reflect numerous elevated to high blood pressure readings in April 1983, August 1984, October 1985, and May 1987. The Board notes that the Veteran elected not to undergo an examination when he separated from service in March 1989, therefore, no separation examination was conducted. The Veteran underwent a VA examination in April 2006. The examiner diagnosed him with hypertension but provided a negative nexus opinion as to direct service connection, stating that the Veteran did not have an official diagnosis of hypertension during service, and that he had normal blood pressure readings between 1985 and 1987. In support of his claim, the Veteran submitted private treatment records from Carolina Cardiology Associates, which reflect a diagnosis of and treatment for hypertension between 2017 and 2019. In these records, Dr. C. A. opines that the Veteran's hypertension is long-standing and documented since between 1985 to 1987. While Dr. C. A. attempts to provide a positive nexus opinion as to direct service connection regarding the Veteran's hypertension, the Board finds this opinion to be conclusory in nature as it lacks adequate rationale explaining how the Veteran's current diagnosis of hypertension is related to his active military service. Dr. C. A. merely references that the Veteran's hypertension is long-standing based on "criteria for that time," without any further medical rationale. While the Board finds Dr. C. A.'s medical opinion to be inadequate to establish service connection for hypertension, it does find that an addendum VA medical opinion is warranted to determine the etiology of the Veteran's hypertension. While the 2006 VA examiner indicated that the Veteran's STRs demonstrated normal blood pressure readings between 1985 and 1987, this opinion contradicts the record, which reflects elevated to high blood pressure readings during service, to specifically include between 1983 and 1987. Thus, a remand is necessary to clarify this discrepancy and to determine the etiology of the Veteran's hypertension. The matter is REMANDED for the following action: 1. With any necessary identification of sources and authorization by the Veteran, request all VA and private treatment records for the Veteran not already associated with the file. Copies of any outstanding VA and private treatment records should be added to the Veteran's electronic claims file. 2. Thereafter, send the Veteran's claims file to an appropriate medical professional to obtain an addendum opinion regarding the nature and etiology of the Veteran's hypertension. The Veteran's electronic claims file must be made accessible to the designated professional for review. A detailed rationale for any opinion expressed should be provided. Following the review of the claims file, the medical opinion provider is then requested to respond to the following: Is it at least as likely as not that the Veteran's hypertension had its onset in service or is otherwise directly related to service? In rendering the requested opinion, the medical opinion provider should consider: (1) the Veteran's STRs which note elevated to high blood pressure readings in April 1983, August 1984, October 1985, and May 1987; and (2) the Veteran's post-service private treatment records from Carolina Cardiology Associates. If the requested opinion cannot be provided without a new examination, one should be scheduled. 3. After completing all indicated development, the Agency of Original Jurisdiction should readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran should be furnished with a supplemental statement of the case, given the opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if warranted. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Houle, 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.