Citation Nr: 21070940 Decision Date: 11/27/21 Archive Date: 11/27/21 DOCKET NO. 18-15 247 DATE: November 27, 2021 ORDER New and material evidence having been received, reopening of service connection for hypertension is granted. Service connection for hypertension is granted. FINDINGS OF FACT 1. A February 2013 Regional Office (RO) rating decision denied service connection for hypertension, finding that the evidence did not support that hypertension was related to service. The Veteran did not file a timely notice of disagreement (NOD) following the February 2013 rating decision, and new and material evidence was not received during the one year appeal period. 2. New evidence received since the February 2013 RO rating decision pertains to a finding that hypertension was incurred in service. 3. The Veteran is currently diagnosed with hypertension. 4. During service the Veteran sought treatment for elevated blood pressure and other hypertension symptoms. 5. The diagnosed hypertension was incurred in service. CONCLUSIONS OF LAW 1. The February 2013 RO rating decision denying service connection for hypertension became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. Evidence received since the February 2013 RO rating decision is new and material to reopen service connection for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 3. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.326(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from December 1965 to December 1967. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2017 Department of Veterans Affairs (VA) RO rating decision. A hearing before the Board was held in September 2021. The hearing transcript has been associated with the record. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision reopens and grants service connection for hypertension, which is a complete grant of the instant appeal, no further discussion of VA's duties to notify and assist is necessary. 1. Reopening of Service Connection for Hypertension is Granted Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received 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 the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Regardless of the RO's determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. A February 2013 RO rating decision denied service connection for hypertension, finding that the evidence did not support that hypertension was related to service. The Veteran did not file a timely NOD following the February 2013 rating decision, and new and material evidence was not received during the one year appeal period. As such, the February 2013 rating decision became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b), 20.302, 20.1103. New evidence received since the February 2013 RO rating decision pertains to a finding that hypertension was incurred in service. As such, the Board finds reopening of the issue of service connection for hypertension to be warranted. 2. Service Connection for Hypertension is Granted The Veteran seeks service connection for hypertension, which the Veteran argues first manifested in service. Review of the evidence of record, to include the report from a December 2012 VA hypertension examination, indicates that the Veteran is currently diagnosed with hypertension. Pursuant to Diagnostic Code 7101, Note 1, for VA rating purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 millimeters (mm.) or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104. After a review of all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether there was an onset of symptoms of hypertension in service and since service separation, i.e., whether the current hypertension was "incurred in" service. Service treatment records reflect that in July 1967 the Veteran was referred for a hypertension evaluation. Per the referral form, the Veteran had been experiencing symptoms of elevated blood pressure, flushing, sweating, and blushing. The subsequent July 1967 consultation sheet noted multiple high blood pressure readings taken during service: June 1, 1967: 152/80; June 20, 1967: 148/70; June 21, 1967: 118/90; June 22, 1967: 102/86; June 22, 1967: 152/72; July 17, 1967: 122/70. While hypertension was not diagnosed at that time, the in-service examiner stated that the Veteran's blood pressure should be checked again in six months. In other words, the in-service examiner found continued monitoring of the Veteran's blood pressure for signs of hypertension to be warranted. In an October 2015 lay statement, the Veteran advanced having symptoms of high blood pressure following service, even though he did not seek treatment for the symptoms because he did not trust doctors and the disability symptoms were not causing any impairment at that time. It was not until he began seeing a doctor for other disabilities many years later that he was diagnosed with, and put on medications for, hypertension. The Veteran received a VA hypertension examination in December 2012. At the conclusion of the examination the VA examiner opined that it was less likely than not that the currently diagnosed hypertension was related to service. This opinion was based, at least in part, on the fact that the Veteran was not diagnosed with hypertension at the time of the July 1967 in-service hypertension consultation; however, the VA examiner did not show recognition of the pattern of elevated blood pressure readings during service or the fact that the in-service examiner explicitly stated that follow-up blood pressure testing should occur six months later (which was after the Veteran had separated from service). As such, the Board finds the VA opinion was based only on the absence of diagnosis of hypertension during service, which is an extralegal requirement added to the requirement only that there be in-service injury, disease, or event. The opinion also essentially omits facts of elevated blood pressure readings and recommendation for further blood pressure testing. As the opinion is based on factual inaccuracies and is legally erroneous, it is inadequate for VA compensation purposes. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). The Board finds that the evidence is at least in equipoise on the question of whether the Veteran had hypertension symptoms, to include high blood pressure, that began during service and continued since service separation, thus tending to show direct service incurrence. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a),(d). As discussed below, the Board is granting the service connection claim based on evidence, including that pertinent to service, which establishes that the hypertension began in service and was so "incurred in" service. The finding that the Veteran had hypertension symptoms since service is supportive of the claim overall because it tends to show that the symptoms that began in service were the basis for the later diagnosis of hypertension. See Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993) (lay statements are competent on in-service and post service symptoms - dizziness, loss of balance, hearing trouble, stumble and fall, and tinnitus - that were later diagnosed as Meniere's disease). The weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran's currently diagnosed hypertension is related to service, that is, was incurred in service. In this case, as there is no adequate medical nexus opinion as to the etiology of the Veteran's hypertension, the Board must look to the remaining evidence of record to determine whether service connection is warranted. (Continued on the next page) Here, the totality of the lay and medical evidence reflects that, during service, there were multiple elevated blood pressure readings that are highly suggestive of the presence of hypertension, as indicated by an in-service examiner. There were also in-service symptoms suggestive of high blood pressure. Service physicians suspected hypertension at least in part due to symptoms of elevated blood pressure, flushing, sweating, and blushing. While the Veteran was not diagnosed with hypertension following evaluation during service, an in-service diagnosis of hypertension is not required to show the onset of hypertension during service. It is notable that the in-service examiner did find continued monitoring of the symptoms to be warranted, which is additional evidence pointing to the onset of hypertension during service. In various lay statements, the Veteran advanced continuing to have high blood pressure symptoms following service separation. Such evidence tends to show that the symptoms of the currently diagnosed hypertension had their onset during service, that is, shows that hypertension was "incurred in" active service. See 38 C.F.R. § 3.303(d). For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for direct service connection for hypertension have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.