Citation Nr: 21068339 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 18-37 852 DATE: November 10, 2021 ORDER New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for the Veteran's cardiovascular disorders and associated hypertension disability. REMANDED Entitlement to service connection for the Veteran's cardiovascular disorders, to include hypertension, is remanded. FINDING OF FACT The claim of entitlement to service connection for cardiovascular disorders and hypertension was most recently denied in a January 2016 Board of Veterans' Appeals (Board) decision. Evidence received since the January 2016 Board decision relates to prior unestablished facts. CONCLUSION OF LAW The January 2016 Board decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for cardiovascular disorders, including hypertension. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.104, 3.156, 20.1100, 20.1103, 20.1104. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1979 to February 1983. The Veteran also had subsequent periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) from October 1997 to June 2005. This matter comes before the Board of Veteran's Appeal (Board) on appeal from an April 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran selected a hearing with a Veterans Law Judge on his June 2018 VA Form 9. In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. By way of background, in January 2016, the Board denied service connection for the Veteran's cardiovascular disorders and associated hypertension disability. Following this decision, the Veteran filed a February 2016 Motion for Reconsideration. However, in May 2016, the Board denied the Veteran's motion. Therefore, the Veteran filed his current claim for service connection for his cardiovascular disorders, including hypertension, in November 2016. New and Material Evidence As indicated above in the Conclusion of Law section, the Board finds that new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a cardiovascular disorder, including hypertension. Accordingly, to this extent, the Board grants the Veteran's appeal. In support of this determination, the Board first notes that the Board recently denied service connection for the Veteran's cardiovascular disorders, including hypertension, in its January 2016 Board decision. The Board found that the Veteran developed a cardiovascular condition, including hypertension, following his separation from active service, and the evidence did not demonstrate that the Veteran's cardiovascular disorders and hypertension were aggravated during any subsequent period of active duty, ACDUTRA, or INACDUTRA. The Board also found that the Veteran was not a medical professional and was not competent to provide an opinion about the relationship between his cardiovascular disorders and his hypertension and any period of active duty, ACDUTRA, or INACDUTRA. Board decisions are final unless the Chairman of the Board orders reconsideration. See 38 U.S.C. §§ 7103(a), 7104(a); 38 C.F.R. § 20.1100 (a). In this case, the Veteran neither requested reconsideration nor appealed the January 2016 Board decision to the United States Court of Appeals for Veterans Claims (Court). Accordingly, it became final. Generally, to reopen a previously denied, final claim, a claimant must present new and material evidence. See 38 U.S.C. § 5108. Evidence is "new" if it was not previously submitted to agency decision makers. Evidence is "material" if, when viewed by itself or with other evidence previously of record, it relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, the Board finds that new and material evidence has been received since the January 2016 Board decision. Specifically, in August 2016, the Veteran filed his medical training specialist certificate to demonstrate that he is competent to attest medical matters. See, August 2016 Medical Certificate. The Veteran also contended that his February 2004 myocardial infarction went undiagnosed because he did have an angiogram, which would have showed that he had three blocks. See, July 2021 Board Hearing Trans. pg. 3. Lastly, the Veteran contended that his cardiovascular disorders are related to dioxin exposure, while he was stationed in Anchorage, Alaska. See, July 2021 Statement in Support of Claim. This evidence was not previously considered by agency decision makers and relates to an unestablished fact necessary to substantiate the Veteran's claim i.e., new theories of entitlement. Accordingly, to this extent, the Board grants the Veteran's appeal. REASONS FOR REMAND Service connection for the Veteran's cardiovascular disorders and associated hypertension is remanded. Although the Board regrets the delay, the Board must remand this claim for a VA medical opinion addressing the Veteran's new theories of entitlement. As noted above, the Veteran contends that an angiogram was necessary to assess whether he had a myocardial infarction (MI) in February 2004. Additionally, the Veteran contends that his cardiovascular disorders were caused by dioxin exposure while he was stationed in Anchorage, Alaska. Since none of the prior VA examinations addressed these concerns or theories of entitlement, the Board finds that an addendum opinion is necessary to properly adjudicate the Veteran's claim. Based on the foregoing deficiencies, an addendum opinion is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports. Rather, the Board is merely requesting that the examiner on remand consider the Veteran's own descriptions of the history of his cardiovascular disorders and associated hypertension disability. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). The matters are REMANDED for the following action: 1. The RO should send the claims file to an appropriate VA examiner who has not previously participated in this case for an addendum opinion as to whether the Veteran's cardiovascular disorders and associated hypertension disability is related to his active duty and any period of ACDUTRA and INACDUTRA. The claims file, including a copy of this Remand, must be made available to and be reviewed by the examiner in conjunction with the examination. If a clinical evaluation is deemed necessary to answer the questions presented, one should be scheduled. The claims file, and a copy of the remand, must be reviewed by the examiner. A notation indicating that the claims file and remand was reviewed should be included in the examination report. Following review of the file and this remand, the examiner is to address the following: (1) Did the Veteran experience an MI in February 2004? If so, identify any current residuals. In reaching a conclusion, please comment on whether an angiogram was necessary to determine whether the Veteran had an MI in February 2004. The examiner's attention is directed to the following: February 2004 Medical Record, July 2021 Board Hearing Trans. pg. 3, and November 2015 VA examiner's opinion. (2) Please state whether the Veteran's cardiovascular disorders and associated hypertension disability is related to the Veteran's in-service exposure to dioxins. In making this determination, please review the September 1995 Environmental Protection Agency Record of Decision, which shows dioxins were a contaminant at Fort Richardson. See July 2021 Correspondence. (3) In providing a response to Part (2), please provide a dose estimation (based on relevant medical literature) for how much dioxins the Veteran must have been exposed to in order for it to cause him to develop cardiovascular disorders and associated hypertension disability. For the purpose of providing the opinion requested, please accept as valid the Veteran's statements that he has experienced joint pain since service, and state whether a nexus between the Veteran's cardiovascular disorders and associated hypertension disability and service is medically consistent with the information provided by the Veteran. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements). The examiner should provide a complete rationale for any opinion rendered. If the examiner's opinion is negative, he or she must clearly explain why, to include a discussion of why the evidence does not support a finding that the Veteran's exposure to dioxins did not contribute to his current cardiovascular disorders and associate hypertension disability. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Foster, 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.