Citation Nr: 21076103 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 15-08 897A DATE: December 22, 2021 ORDER New and material evidence having been submitted, the previously denied and final claim of service connection for hypertension is reopened. REMANDED Entitlement to service connection for hypertension is remanded. FINDING OF FACT New and material evidence has been submitted to reopen a previously denied and final claim of service connection for hypertension. CONCLUSION OF LAW New and material evidence having been received; the claim of service connection of hypertension is reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1984 until July 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal was previously remanded by the Board in April 2020 to permit the agency of original jurisdiction (AOJ) to consider evidence in the first instance and for additional development. At that time, the appeal included the current issue as well as entitlement to service connection for PTSD and herpes. Subsequent to the Board's remand, service connection for PTSD and herpes were granted in December 2020 rating decisions. As the grant of service connection is considered a full grant of the benefit sought for those issues, they are no longer before the Board. For the issue of entitlement to service connection for hypertension, including whether new and material evidence has been received, the Board notes that, although that issue was remanded, no specific instructions were given in the remand pertaining to that issue. Nonetheless, it is implied that a remand was requested to consider additional evidence by the RO prior to adjudication. As all evidence considered since the time of the prior remand was considered by the RO, the Board must find there has been substantial compliance with its prior remand directive with regard to the claim. Stegall v. West, 11 Vet. App. 268, 271 (1998). However, for the reasons discussed below, an additional remand is necessary to ensure proper development of the overlying appeal. New and Material Evidence Whether new and material evidence has been submitted to reopen a previously denied and final claim of service connection for hypertension If a claim was previously denied by a RO or Board decision, and that RO or Board decision became final, then the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 ; 38 C.F.R. § 3.156. Even if the RO (in a rating decision, statement of the case, or supplemental statement of the case) has already determined that new and material evidence has been submitted, in the appeal, a new and material evidence analysis must still be completed by the Board. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In general terms, "new" evidence is evidence that was not of record at the time that the prior final RO or Board decision was issued. "Material" evidence is evidence that addresses the element(s) of service connection that were deficient (and therefore the basis of denial) in the prior final RO or Board decision. See 38 C.F.R. § 3.156 (a). New and material evidence need not prove a claim, but merely address a previously deficient criteria of service connection. The Veteran's claim of service connection of hypertension was initially denied in a November 1987 rating decision. She did not appeal that claim and it became final. Although the RO has de facto reopened the claim, the Board must still consider whether new and material evidence has been submitted to reopen the claim prior to adjudication. Throughout the appeal period pertaining to this specific claim, the Veteran has been afforded at least two medical examinations which address the possible etiology of her hypertension. This evidence is new in that it was not of record at the time of the 1987 rating decision. It is material in that it addresses a previously deficient criteria of service connection. As such, the appeal is reopened; to this limited extent, the appeal is granted. The Board notes that this grant is limited to reopening the appeal only, and does not speak to the viability of the overlying service connection claim, which is addressed in the below remand. REASONS FOR REMAND Entitlement to service connection for hypertension, to include whether new and material evidence has been received, is remanded. The AOJ denied the Veteran's claim to reopen a claim for entitlement to service connection for hypertension and notified the Veteran in a supplemental statement of the case (SSOC) issued in May 2021. The AOJ returned the appeal to the Board in June 2021. VA treatment records were subsequently added to the claims file in August 2021. In a September 2021 letter, the Board notified the Veteran that evidence not previously considered by the AOJ had been received. The Veteran was notified of her right to waive AOJ consideration of this evidence and provided 45 days to respond. No response was received from the Veteran. Therefore, to ensure the due process rights of the Veteran are preserved, the Board must remand the appeal to the AOJ so that evidence added to the claims file since the issuance of the May 2021 SSOC can be considered by the AOJ in the first instance. Additionally, the VA etiology opinion regarding hypertension obtained in May 2021 is inadequate for adjudication. The examiner reached a negative nexus opinion but failed to support that conclusion with any rationale beyond stating, "I cannot locate any [service treatment records (STRs)] from military service addressing the elevated BP readings." However, the Board notes that the Veteran's STRs show at least several occasions where the Veteran's blood pressure was elevated to hypertensive levels. Specifically, in March 1987, the Veteran showed a blood pressure reading of 130/100, thus documenting a diastolic pressure of 100 or greater; likewise, in June 1987, she showed blood pressure readings of 160/80 and 150/70, both indicative of possible systolic hypertension. These elevated results must be discussed. Therefore, an addendum opinion should be obtained which addresses the in-service incidents of elevated blood pressure. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriate clinician to address the nature and likely etiology of the Veteran's diagnosed hypertension. The clinician should be provided with all pertinent documents. If the clinician determines a requested opinion cannot be made without examination of the Veteran, one should be scheduled. After reviewing pertinent documents and examination of the Veteran, if necessary, the clinician should answer the following: Is it at least as likely as not that the Veteran's hypertension began in or is otherwise related to her active military service? In answering this question, the examiner is requested to specifically address the elevated blood pressure readings in March and June 1987. A complete rationale and discussion should accompany any opinion given. M. Pryce Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Collins, 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.