Citation Nr: 21071867 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 19-34 538 DATE: December 1, 2021 ORDER New and material evidence having been received, reopening of service connection for hypertension is granted. New and material evidence having been received, reopening of service connection for coronary artery disease (CAD) is granted. Service connection for hypertension is granted. Service connection for CAD, as secondary to service connected hypertension, is granted. FINDINGS OF FACT 1. Most recently, a September 2002 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 filed a timely notice of disagreement (NOD) and a statement of the case (SOC) was issued in February 2004; the Veteran subsequently did not perfect the appeal. 2. A February 2002 RO rating decision denied service connection for CAD, finding that the evidence did not support that CAD was related to service. The Veteran did not file a timely NOD following the February 2002 rating decision, and new and material evidence was not received during the one year appeal period. 3. The Veteran is currently diagnosed with hypertension and CAD. 4. During service the Veteran had elevated blood pressure levels. 5. The currently diagnosed hypertension is related to the in-service elevated blood pressure levels. 6. The CAD was caused, at least in part, by the service connected hypertension. CONCLUSIONS OF LAW 1. The September 2002 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 September 2002 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. The February 2002 RO rating decision denying service connection for CAD became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 4. Evidence received since the February 2002 RO rating decision is new and material to reopen service connection for CAD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. 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, 1131, 1133, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a). 6. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for CAD, as secondary to service connected hypertension, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1133, 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 June 1954 to March 1958, and from March 1959 to July 1974. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2018 Department of Veterans Affairs (VA) RO rating decision. By way of history, in September 2018 the Veteran submitted a VA Form 21 526EZ, Application for Disability Compensation and Related Compensation Benefits, on the issues of "CUE for hypertension" and "CUE for coronary artery disease." As the Veteran failed to meet the threshold pleading requirements for an allegation of clear and unmistakable error (CUE) (to include failing to identify the rating decisions in which CUE was alleged, and failing to specifically plead any actual CUE arguments), the Agency of Original Jurisdiction (AOJ) treated the September 2018 claim as one to reopen service connection for hypertension and CAD. In the instant decision the Board grants service connection for hypertension and CAD. As the question of CUE in prior RO rating decisions could impact the effective date of service connection for these disabilities, the Board invites the Veteran and/or representative to submit a properly pled CUE claim to the AOJ if they still wish to pursue the question of CUE in a prior RO rating decision. Any CUE claim is not intertwined with the issues currently before the Board. A virtual Board hearing before the undersigned Veterans Law Judge was held in August 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 both issues on appeal, no further discussion of VA's duties to notify and assist is necessary. 1. Reopening of Service Connection for Hypertension is Granted 2. Reopening of Service Connection for CAD 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. Most recently, a September 2002 RO rating decision denied service connection for hypertension, finding that the evidence did not support that hypertension was related to service. The Veteran filed a timely NOD, and a SOC was issued in February 2004. The Veteran subsequently failed to perfect the appeal. Further, a February 2002 RO rating decision denied service connection for CAD, finding that the evidence did not support that CAD was related to service. The Veteran did not file a timely NOD following the February 2002 rating decision, and new and material evidence was not received during the one year appeal period. As such, the February 2002 and September 2002 rating decisions became final as to the evidence then of record, and are 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 aforementioned RO rating decisions pertains to a finding that currently diagnosed hypertension is related to service, and that currently diagnosed CAD is secondary to the service-related hypertension. Specifically, VA has received an April 2021 private treatment letter from the Veteran's cardiologist opining as such. The Board finds such evidence to be new and material to warrant reopening of the issues of service connection for hypertension and CAD. Service Connection Legal Authority Service connection may be granted for disability arising 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 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Hypertension and CAD are "chronic" diseases under 38 C.F.R. § 3.309(a). As such, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable to those issues. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Further, Service connection may be granted for disability that is proximately due to or the result of a service-connected disability. An increase in severity of a non service connected disorder that is proximately due to or the result of a service connected disability, and not due to the natural progress of the non service connected condition, will be service connected. Aggravation will be established by determining the baseline level of severity of the non service connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Service Connection for Hypertension is Granted The Veteran seeks service connection for hypertension, which the Veteran argues is related to high in-service blood pressure readings. Review of the evidence of record, to include an April 2021 private treatment letter from the Veteran's cardiologist, 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. Next, the Board finds that during service the Veteran had elevated blood pressure levels. Per a March 2002 private treatment letter, a physician who had been treating the Veteran for the previous three years reported that service treatment records showed that the Veteran had elevated blood pressure on at least three occasions during service. Specifically, the private treatment letter noted that in October 1973 the Veteran had a blood pressure reading of 125/90, in June 1974 the Veteran had a blood pressure reading of 134/94, and at the time of the Veteran's service separation examination later in June 1974, the Veteran had a blood pressure reading of 130/96. Review of the service treatment records confirms the blood pressure readings reported in the March 2002 private treatment letter. Having reviewed all the evidence of record, lay and medical, the Board finds the evidence at least in equipoise on the question of whether currently diagnosed hypertension is related to the in-service elevated blood pressure levels. At the outset, the Board notes that the Veteran has never received a VA hypertension examination, and there is no negative direct service connection opinion of record. Per the March 2002 private treatment letter, discussed above, the private physician opined that the currently diagnosed hypertension was related to the in service elevated blood pressure levels. Specifically, the private physician appears to opine that the elevated blood pressure readings found in the service treatment records support that the Veteran actually had hypertension at the time of service separation, but that it went undiagnosed until years later. Per an April 2021 private opinion letter, the Veteran's private cardiologist reported the "presence of hypertension readings in service." In other words, the private cardiologist found that the in service high blood pressure readings supported that the Veteran had hypertension that manifested during service. This opinion is supported by the March 2002 private treatment letter, discussed above. In sum, the evidence of record reflects that the Veteran is currently diagnosed with hypertension, and that during service the Veteran had elevated blood pressure levels. Two private physicians have effectively opined that the currently diagnosed hypertension is related to the in-service elevated blood pressure readings, which they believe show in-service hypertension. As such, resolving all reasonable doubt in favor of the Veteran, the Board finds the criteria for service connection for hypertension have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As service connection is being granted on a direct basis, there is no need to discuss entitlement to service connection on a presumptive or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. 4. Service Connection for CAD is Granted The Veteran seeks service connection for CAD as secondary to the now service connected hypertension. At the outset, the Board notes that there is a current diagnosis of CAD. Such diagnosis can be found throughout the record, to include in an April 2021 private opinion letter from the Veteran's cardiologist. Having reviewed all the evidence of record, lay and medical, the Board finds the evidence at least in equipoise on the question of whether the currently diagnosed CAD was caused by the service-connected hypertension. Per the April 2021 private opinion letter, the Veteran's private cardiologist stated that, "[the Veteran]'s early and longstanding hypertension has contributed to early coronary artery disease." In other words, the private examiner found that the Veteran's later diagnosed CAD was caused, at least in part, by the service connected hypertension. Per the report from the March 2002 private treatment letter, the Veteran's private physician at that time found that the Veteran had hypertension in service and "subsequently developed clinically significant Coronary Artery Disease[.]" The private physicians in March 2002 and April 2021 used language that could be read as finding that the now service connected hypertension aggravated, rather than caused, the CAD; however, based on the Board's reading of the evidence, in particular the March 2002 treatment letter, it appears that the private physicians were merely opining that the symptoms of the CAD (requiring surgery) would not have been as severe had the Veteran been properly diagnosed with, and treated for, hypertension during service. This does not conflict with the Board's finding that the service-connected hypertension, at least in part, caused, rather than aggravated, the CAD. In other words, had the Veteran's hypertension been detected and treated during service, the hypertension still would have caused (at least in part) the CAD, but the symptoms of the CAD would have been much less severe. In sum, the evidence of record supports that the Veteran has been diagnosed with CAD, and the Veteran's private physician in April 2021 opined that the CAD was caused by the now service-connected hypertension. This opinion is supported by the findings of a private physician in March 2002. As such, resolving all reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for CAD, as secondary to service connected hypertension, on a causation basis, have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As service connection is being granted on a secondary basis, there is no need to discuss entitlement to service connection on a direct, presumptive, or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. 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.