Citation Nr: 21069615 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 18-44 972 DATE: November 19, 2021 ORDER New and material evidence having been received, the application to reopen a claim of service connection for hypertension is granted. REMANDED Service connection for hypertension is remanded. FINDING OF FACT 1. In a June 2011 rating decision, the RO denied service connection for high blood pressure, and in a June 2011 letter, notified him of the determination, but he did not appeal the determination and the decision became final. 2. The evidence received since the June 2011 rating decision regarding service connection for hypertension is not cumulative or redundant and raises a reasonable possibility of substantiating the Veteran's claim. CONCLUSION OF LAW 1. The June 2011 rating decision that denied service connection for high blood pressure is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103. 2. Evidence received since the June 2011 rating decision is new and material; the claim of service connection for hypertension is reopened. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from September 1967 to September 1970, including service in the Republic of Vietnam. His decorations include the Navy Achievement Medal with Combat "V" and the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). 1. New and material evidence having been received, the application to reopen a claim of service connection for hypertension Generally, a claim which has been denied in an unappealed rating decision or an unappealed Board decision may not be reopened and allowed. 38 U.S.C. § 7105(c). An exception to that rule is that if new and material evidence is presented with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. Evidence is considered "new" if it was not previously submitted to agency decisionmakers. "Material" evidence is 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. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, the RO denied the Veteran's claim for service connection for high blood pressure in a June 2011 rating decision because the service treatment records were silent for treatment or complaints related to high blood pressure and a nexus opinion from a November 2010 VA examination concluded that hypertension was not directly caused by or related to stress from military service. The claim was denied again in a May 2014 rating decision as the RO stated the evidence submitted was not found to be sufficient to establish a nexus between the hypertension and military service while there was no evidence supporting a link between significant renal disease and the Veteran's diabetes. Since the final decision, evidence has been received regarding the Veteran's service connection claim for his hypertension disability. Specifically, the Veteran has submitted lay statements to the VA in April 2014, underwent a VA examination for hypertension in July 2018 with a corresponding VA medical opinion, and submitted a private medical nexus opinion in support of his claim in August 2021. The Board finds that the new evidence, when considered with the evidence previously of record, relates to an unestablished fact necessary to substantiate the Veteran's hypertension disability claim. The newly submitted evidence, which was not previously considered in the Veteran's claim to reopen the issue from May 2014, raises a reasonable possibility of substantiating the claim and is therefore new and material. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Accordingly, the claim is reopened. REASONS FOR REMAND 1. Service connection for hypertension is remanded. The Veteran seeks service connection for hypertension, claiming the condition is secondary to his service-connected diabetes mellitus type II and/or service-connected posttraumatic stress disorder (PTSD) with unspecified depressive disorder. See August 2010 Statement in Support of Claim. In this regard, the Board observes that the Veteran's service-connected psychiatric disability is rated as 70 percent disabling and his diabetes mellitus is rated as 20 percent disabling. The Veteran also stated his high blood pressure and diabetes conditions are associated with his Agent Orange exposure while in Vietnam. See October 2010 & April 2014 Statements in Support of Claim. The Veteran was afforded a VA examination for hypertension in July 2018; the VA examiner opined that Veteran's hypertension was less likely than not proximately caused by is PTSD and/or the medications used to treat his PTSD because psychotropic medications have a sedative effect and there was no reasonable expectation of seeing elevated blood pressures to occur with medications being used to treat PTSD. See July 2018 C&P Exam. The Board finds that it cannot make a fully-informed decision on the issue of service connection for hypertension because the July 2018 VA examiner did not provide an adequate rationale as to whether the condition may be related to service, including the Veteran's presumed Agent Orange exposure during service in the Republic of Vietnam. Although hypertension is not listed as a disease associated with herbicide exposure under 38 C.F.R. § 3.309(e), the Veterans and Agent Orange: Update 11 (2018), by the National Academies of Sciences, Engineering and Medicine (NAS), upgraded hypertension from its previous classification in the category of "limited or suggestive" evidence of an association to Agent Orange to the category of "sufficient" evidence of an association. According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. In light of this record, the Board finds that a VA opinion is warranted to address the potential relationship between the Veteran's hypertension and service, including Agent Orange exposure; see also Healey v. McDonough, 33 Vet. App. 312 (2021). Additionally, while the Veteran was afforded a VA examination in July 2018, the examiner did not provide adequate rationale for his opinion that the Veteran's claimed hypertension is less likely than not secondary to or aggravated by his service-connected PTSD. The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit medical opinions that address whether any of the conditions for which he seeks service connection are related to or had their onset in service, to include his presumed Agent Orange exposure. The Veteran should be provided an appropriate amount of time to submit this medical evidence. 2. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) by an appropriate clinician to determine the nature, onset and etiology of Veteran's hypertension condition. The examiner is asked to review the pertinent evidence, including the Veteran's lay assertions regarding his symptomatology, and undertake any indicated studies. Then, based on the results of the examination, the examiner is asked to address each of the following questions: (a) Please opine as to whether the hypertension disability is related to the Veteran's presumed exposure to Agent Orange. With regard to the hypertension claim, in answering this question, the examiner is asked to disregard whether the disorder is one for which a "presumption" is established and, instead, to answer whether his hypertension is a result of Agent Orange exposure even though it is not on the list of "presumptive" diseases. (b) To this extent, the examiner should consider the Veterans and Agent Orange: Update 11 (2018), where the National Academies of Sciences, Engineering and Medicine (NAS), upgraded hypertension from its previous classification in the category of "limited or suggestive" evidence of an association to the category of "sufficient" evidence of an association. The examiner must acknowledge and discuss that, according to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. (c) Please opine as to whether it is at least as likely as not that the Veteran's hypertension was caused by his service-connected diabetes mellitus type II or by his service-connected PTSD, to include the aggregate impact of the conditions. (Continued on the next page) (d). Please opine as to whether it is at least as likely as not that the Veteran's hypertension was aggravated by his service-connected diabetes mellitus type II or by his service-connected PTSD, to include the aggregate impact of the conditions. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.