Citation Nr: 21073805 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 18-29 454 DATE: December 10, 2021 ORDER With new and material evidence having been presented, the claim for entitlement to service connection for hypertension is reopened. REMANDED Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. In a January 2006 rating decision, the RO denied service connection for hypertension. The Veteran did not appeal that decision and it became final. 2. Evidence added to the record since the January 2006 rating decision is not cumulative or redundant of the evidence of record at the time of the decisions and raises a reasonable possibility of substantiating the claim of service connection for hypertension. CONCLUSION OF LAW New and material evidence has been received since the January 2006 rating decision denying entitlement to service connection for hypertension; the criteria for reopening this claim have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from February 1965 to June 1990, to include over 12 years of foreign service. For his meritorious service, the Veteran was awarded (among other decorations) the Purple Heart, the Meritorious Service Medal, the Army Commendation and Achievement Medals, the Air Medal, and the Vietnam Service and Campaign Medals. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before the undersigned Veterans Law Judge in October 2021. A transcript of the hearing is of record. 1. With new and material evidence having been presented, the claim for entitlement to service connection for hypertension is reopened The Veteran is seeking to reopen his claim for entitlement to service connection for hypertension. VA may reopen a claim for service connection which has been previously and finally disallowed when new and material evidence has been presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this regard, "new evidence" means existing evidence not previously submitted to VA. "Material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Taken in combination, 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). New evidence may be sufficient to reopen a claim if it can contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Thus, the Board must first determine whether new and material evidence has been submitted under 38 C.F.R. § 3.156 (a) to have a claim reopened under 38 U.S.C. § 5108. Elkins v. West, 12 Vet. App. 209 (1999). Then the Board may proceed to evaluate the merits of the claim after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record. The RO initially denied the Veteran's claim for service connection for hypertension in January 2006 on the basis that there was no in-service incurrence, event, or injury that led to hypertension within a year of discharge from the service; and his hypertension was not proximately due to, or aggravated beyond its normal progression by, his service-connected diabetes. This denial of service connection became final, as the Veteran did not initiate an appeal of the RO's rating decision, nor was any new and material evidence received within a year. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. The Veteran sought to reopen his claim for service connection in October 2017 by submitting new evidence. The December 2017 rating decision denied the reopening of the Veteran's claim because the evidence submitted was not new and material. The Veteran perfected an appeal. The Board finds that the new evidence does raise a reasonable possibility of substantiating the Veteran's claim. Again, the January 2006 rating decision denied the Veteran's claim on the basis that there was no link to an in-service injury or event. The new evidence (as discussed more fully in the remand section) establishes the reasonable possibility that the Veteran's disability could be related to his active duty service. Therefore, the Board finds that new and material evidence is of record since the prior final denial of this claim in January 2006. Shade, 24 Vet. App. at 117. The claim of entitlement to service connection for hypertension is thus reopened. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded The Veteran asserts he is entitled to service connection for hypertension. The Veteran underwent his most recent VA examination for hypertension in January 2007. The examiner opined that the Veteran's hypertension was not related to his service-connected diabetes, finding that it preceded his diabetes diagnosis. In providing this opinion, the examiner did not provide medical reasons and bases in support of the conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Thus, the medical opinion is inadequate. Further, evidence of record reveals that the Veteran was exposed to herbicides during his active duty service. No VA examiner has opined as to whether the Veteran's hypertension is at least as likely as not related to herbicide exposure. As such, a remand is necessary to obtain a new VA examination and opinion. The matters are REMANDED for the following action: Obtain an opinion from an appropriate examiner regarding whether the Veteran's hypertension is related to his active service, or whether it is secondary to any of the Veteran's service-connected disabilities. The Veteran's claims file, to include a copy of this remand, must be reviewed. If the examiner determines that an opinion may not be rendered without first examining the Veteran, then schedule the Veteran for an appropriate examination. Regardless of whether an examination is performed, the examiner is to answer the following questions: a) Is it at least as likely as not that the Veteran's hypertension had its onset in or is otherwise related to the Veteran's active service? In answering this question, the examiner must discuss any elevated blood pressure readings found in the Veteran's service treatment records. b) Is it at least as likely as not that the Veteran's hypertension is related to his in-service exposure to herbicide agents? In answering this question, the examiner is notified that the Veteran's exposure to herbicide agents is presumed based on his service in the Republic of Vietnam. The examiner may not base a negative opinion on the fact that hypertension is not a disability deemed presumptively related to herbicide agent exposure. Instead, the examiner must address any medical literature regarding a possible association, to include the most recent updates from the National Academy of Sciences. c) Is it at least as likely as not that the Veteran's hypertension is secondary to any of his service-connected disabilities? That is, is the Veteran's hypertension proximately due to, the result of, or aggravated by any of his service-connected disabilities, to include his diabetes, diabetic nephropathy, and residuals of prostate cancer? Schedule the Veteran for a VA examination for his hypertension. The examiner must review the claims file. A complete rationale must be provided for all requested opinions. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. K. Hall, 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.