Citation Nr: 21070309 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 19-16 192 DATE: November 23, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim for service connection for hypertension is granted. Entitlement to service connection for hypertension is granted. FINDINGS OF FACT 1. An unappealed June 2014 rating decision denied reopening a claim for service connection for hypertension; new and material evidence was not received within one year of that decision. 2. Additional evidence received since the June 2014 rating decision relates to previously unestablished facts necessary to substantiate the service connection claim for hypertension. 3. Resolving all reasonable doubt in the Veteran's favor, his diagnosed hypertension is at least as likely as not etiologically related to his active service. CONCLUSIONS OF LAW 1. The June 2014 rating decision that denied reopening the claim for service connection for hypertension is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2014). 2. The evidence received since the June 2014 rating decision is new and material evidence and serves to reopen the Veteran's claim for service connection for hypertension. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1964 to January 1993. This matter was previously remanded by the Board of Veterans' Appeals (Board) in June 2020 for further evidentiary development. New and Material Hypertension Where a claim has been finally adjudicated, new and material evidence sufficient to reopen the previously denied claim is required. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). New evidence is evidence not previously received by agency decision makers. 38 C.F.R. § 3.156 (a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purposes of reopening a claim, newly received evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether the new evidence raises a reasonable possibility of substantiating a claim. Id. at 117-18. Even where the RO has reopened and adjudicated a claim on the merits, the Board must consider the question of whether new and material evidence has been received sufficient to reopen the previously denied claim without regard to the RO's decision. This is necessary to establish the Board's jurisdiction to address the underlying claim and to adjudicate the claim de novo. Jackson v. Principi, 265 F. 3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996). In a June 2014 rating decision, the RO declined to reopen the claim for service connection for hypertension because the evidence did not show that the condition was related to service or was manifested to a compensable degree within the presumptive period following service. The Veteran did not perfect an appeal of the adverse determination, nor did he submit any additional evidence within the time frame needed to prevent the decision from becoming final. Thus, the June 2014 rating decision became final as to this issue, based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. In July 2017, the Veteran filed a claim to reopen this previously denied service connection claim. A September 2017 rating decision declined to reopen this issue. In October 2017, he submitted additional evidence. In January 2018, the RO reopened this previously denied issue but denied the underlying service connection claim on the merits. The Veteran filed a timely appeal to this denial. Although the RO reopened the previously denied claim for service connection for hypertension, the Board must revisit this matter prior to considering the underlying issue of entitlement to service connection for hypertension on the merits. The evidence added to the record since the June 2014 rating decision includes an October 2017 memorandum in which a private physician opined that dioxin exposure most likely contributed to the development of the Veteran's hypertension. A December 2020 VA examination with an accompanying August 2021 addendum opinion were included to the record. As the credibility of this evidence is presumed for the purpose of deciding whether it is new and material, this evidence is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claim for service connection for hypertension. Thus, this claim is reopened. Service Connection Hypertension Service connection will be granted if the evidence demonstrates that a current disability resulted 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 requires competent evidence showing: (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, to include hypertension, are presumed related to service if noted as chronic in service, if manifested to a compensable degree within a presumptive period following separation from service, or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). The Board notes that a layperson is competent to report on the onset and continuity of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in 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, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that his currently diagnosed hypertension is due to his active service. Specifically, he asserts that his hypertension is related to his in-service exposure to herbicide agents. For VA compensation purposes, the term "hypertension" means that the diastolic blood pressure is predominantly 90 mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. Further, VA regulations define pre-hypertension as systolic blood pressure 120-139 mm and diastolic blood pressure 80-89 mm. The record shows a formal diagnosis of hypertension in 1998. As an initial matter, the Veteran is presumed to have been exposed to herbicide agents based on service in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. § 3.307,3.309(e). However, his hypertension is not a disease for which presumptive service connection based on exposure to herbicide agents is warranted. 38 C.F.R. § 3.309(e). However, service connection on a direct basis may still be warranted. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service treatment records (STRs) reflect numerous in-service blood pressure readings. Notably, on a few occasions, the Veteran's diastolic blood pressure was near or at 90 mm Hg. For instance, an STR dated October 1988 shows a blood pressure reading of 124/86, and, at an annual physical that same month, he had a blood pressure reading of 126/88 with notes of an abnormal electrocardiogram (EKG). A May 1989 STR shows a blood pressure reading of 134/90, and a December 1991 STR shows a blood pressure reading of 124/94, both of which meet the VA's hypertension definition. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Importantly, at his over 40 physical examination and thereafter, the record reflects medical assessments for a probable cardiovascular condition or hypertension. See STR 9 February 1983 and 29 September 2008. Although a single elevated blood pressure reading cannot be used to establish a hypertension diagnosis, it is sufficient to show a symptom, namely elevated blood pressure, possibly associated with hypertension. In other words, a hypertension symptom, and pre-hypertension, was "noted" during service for 38 C.F.R. § 3.303(b) purposes. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). There is no objective evidence that the Veteran was diagnosed as having hypertension within one year of his service discharge. In fact, post-service treatment records do not show a diagnosis of hypertension until 1998, five years after his separation from service. In an October 2017 memorandum, a private physician opined that dioxin exposure most likely contributed to the development of the Veteran's hypertension. However, the prior Board remand found this opinion to be inadequate because the examiner did not provide an adequate rationale in support of the opinion. (A mere conclusion without an underlying rationale is of no probative value. Miller v. West, 11 Vet. App. 345 (1998).) Pursuant to the June 2020 Board remand, the Veteran was afforded VA examination in December 2020, at which time the examiner noted that he was unable to find records that met the VA criteria of two blood pressures on the same day for three different days. However, upon review of the claims file, the examiner found sufficient documentation of elevated blood pressures and continued treatment for hypertension over the years. The examiner rendered a diagnosis of hypertension. Initially, the examiner opined against a nexus between the Veteran's hypertension diagnosis and his active service (or his service-connected disabilities). The examiner explained that hypertension was diagnosed in 1998, five years after service ended, but that such diagnosis was not within VA guidelines. Regarding secondary service connection, the examiner stated he was unable to confirm a current chronic diagnosis with current available records and/or the examination. Further, hypertension was developed five years after service which does not fall within the VA guidelines of a compensable illness. In an August 2021 addendum, the examiner clarified that, at the time of the December 2020 VA examination, the Veteran did not have a diagnosis of hypertension. The examiner then opined that it was less likely than not that the Veteran's hypertension began during his active service. The examiner explained that there is no record of chronic hypertension during, or immediately following, service. The examiner also note that hypertension did not manifest within one year of separation from service as evidenced by the available records, nor was hypertension noted during service to establish a continuity of symptoms form discharge to diagnosis several years later. Regarding herbicide exposure, the examiner found that, although the Veteran is presumed to have exposure to Agent Orange, hypertension is not one of the chronic diseases that the VA presumes is related to exposure to herbicides. Although there are studies that note a statistical correlation between Agent Orange and hypertension, a correlation does not equal causation. The examiner explained in detail the correlation between exposure to TCDD from Agent Orange and its effects on the environment and veterans who served in Vietnam. However, the examiner concluded that, in the Veteran's case, a nexus is not established because, while recent studies have shown an association with hypertension and veterans assigned to the chemical corps who had a high exposure to herbicides, there was no association with veterans with other military occupations specialties (MOS). To note, the Veteran's MOS was that of a combat engineer and was involved with waste incineration. Regarding secondary service connection, the examiner found that hypertension was less likely than not proximately due to, a result of, or aggravated by the Veteran's service-connected disabilities. The examiner explained that it has previously been established that the Veteran's hypertension was not the result of his diabetes as hypertension predated the diabetes diagnosis. Likewise, for sleep apnea and hypertension, the examiner noted a correlation but explained that a correlation does not equal causation and that there is no credible medical evidence of a causal link. The examiner acknowledged that it is well documented that acute stress results in temporary elevation of blood pressure, but that there is no evidence that stress/anxiety results in chronic hypertension. All other service-connected conditions are musculoskeletal in nature and would, thus, not result in hypertension and were diagnosed after the Veteran's hypertension. Thus, the examiner concluded that a nexus is not present. The Board acknowledges the VA examiner's opinion. However, after carefully reviewing and weighing the evidence of record, the Board is satisfied that hypertension cannot be clearly disassociated from military service. While the Board cannot ignore or disregard a VA examiner's medical conclusions, the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Willis v. Derwinski, 1 Vet. App. 66 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992). Here, the Board is persuaded by the elevated blood pressure during service and the Veteran's credible assertions of continued symptoms since thenand finds that they are sufficient to establish the onset of hypertension to his military service. The Board has no reason to question the credibility of the Veteran's statements, as he has been consistent in his reports of the onset of his symptoms. See Buchanan, 451 F.3d at 1337. Indeed, the Veteran's STRs show instances of both normal blood pressure and elevated blood pressure. He had numerous blood pressure readings considered to be in the pre-hypertensive range. As previously noted, an isolated blood pressure reading is not enough to establish a hypertension diagnosis but is sufficient to show a symptom, namely elevated blood pressure, possibly associated with hypertension. The Board finds that the Veteran hypertensive symptoms onset in service and continued thereafterultimately led to a diagnosis of hypertension. Accordingly, the evidence of record is at least in relative equipoise. Resolving all reasonable doubt in favor of the Veteran, service connection for hypertension is warranted. 38U.S.C. §5107(b); 38C.F.R. §3.102. As the Board finds that direct service connection for hypertension is warranted (the greater benefit), no further discussion regarding other theories of entitlement is necessary. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. R. Bobb, 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.