Citation Nr: 21008892 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 17-44 569 DATE: February 18, 2021 ORDER New and material evidence having been received, the claim of service connection for hypertension is reopened. Service connection for coronary artery disease (CAD) is granted. REMANDED The issue of service connection for hypertension is remanded. FINDINGS OF FACT 1. In a January 2013 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for hypertension; a timely notice of disagreement (NOD) was not filed, and no new and material evidence was received within the appeal period. 2. Additional evidence received since the January 2013 rating decision is new, relates to an unestablished fact necessary to substantiate the claim of service connection for hypertension, and raises a reasonable probability of substantiating the claim. 3. The competent and probative evidence is at least in equipoise as to whether CAD is related to in-service herbicide exposure in Vietnam from 1969 to 1970. 4. The Veteran has a current diagnosis of CAD, which is presumed related to his in-service herbicide exposure. 5. The presumption that the Veteran’s current CAD is related to in-service herbicide exposure has not been rebutted by affirmative evidence of record. CONCLUSIONS OF LAW 1. The January 2013 decision denying service connection for hypertension is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 2. New and material evidence has been received since the January 2013 decision to reopen the claim of service connection for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for CAD have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to February 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a Board videoconference hearing. A transcript of the hearing has been associated with the virtual file. New and Material Evidence 1. Whether new and material evidence has been received to reopen the claim of service connection for hypertension. Generally, a claim which has been denied in a final decision by an AOJ may not thereafter be reopened and allowed. 38 U.S.C. § 7105(b). If, however, new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary must reopen the claim and review its former disposition. 38 U.S.C. § 5108. To be considered new, evidence cannot have been previously submitted to agency decision makers or be cumulative or redundant of evidence of record at the time of the last prior final denial. To be material, evidence must, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim, and raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 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). The credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In deciding whether new and material evidence has been submitted, the Board considers evidence submitted since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). After reviewing the record, the Board finds that new evidence has been received since the final prior decision, and such evidence is material to the issue of service connection for hypertension. In January 2013, the AOJ denied service connection for hypertension for lack of a positive nexus opinion. The Veteran did not file a timely NOD and no new and material evidence was received within the period; therefore, the January 2013 decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 3.104, 3.156(b), 20.1103. The Board will therefore consider evidence received since the January 2013 decision. In January 2020, the Veteran testified diabetes mellitus, type II (diabetes) was diagnosed in 1998 or 1999 and hypertension was diagnosed some time after diabetes. See January 2020, Hearing transcript. The Board finds that the Veteran’s testimony is new and directly pertains to the basis for the prior final denial, by addressing whether there may be a medical nexus between service-connected diabetes and hypertension. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection 2. Service connection for CAD. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303(d). If a veteran was exposed to an herbicide agent during active service, the diseases set forth in 38 C.F.R. § 3.309(e), including CAD, will be presumed to be related to such service if they become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(ii). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 C.F.R. § 3.307(a)(6)(iii). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). The Veteran contends that herbicide exposure while stationed in Vietnam caused CAD. January 2020, Hearing transcript. After review of the record and applicable law, the Board finds the criteria for service connection for CAAD based on herbicide exposure have been met. The record contains competent diagnoses of atrial fibrillation, mild coronary artery calcifications, and diffuse nonobstructive atherosclerosis (or nonobstructive CAD). See Private treatment records dated August 2018 and March 2019. The Board, accordingly, finds competent evidence of a current disorder. The Veteran’s service records demonstrate that he served in Vietnam from April 1969 to April 1970. See February 1971, DD-214. In light of the foregoing, the Board finds that the weight of the competent and probative evidence is at least in equipoise as to whether CAD is related to in-service herbicide exposure in Vietnam from 1969 to 1970. The Veteran is therefore presumed to have been exposed to herbicide agents during service. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.307(a)(6). Service connection is therefore warranted for CAD, which is included in the list of disorders that are presumed to be related to in-service herbicide agent exposure. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). REASONS FOR REMAND The issue of service connection for hypertension. The Veteran contends that he was first diagnosed with service-connected diabetes mellitus, type II (diabetes) and hypertension developed after said diagnosis. January 2020, Hearing transcript. Service treatment records (STRs) indicate the Veteran was treated for chest pain lasting two days and an elevated blood pressure reading of 152/94 was noted. See STRs dated August 1968 and November 1969. Private treatment records indicate diabetes was diagnosed in 1995 or 1996. In May 2002, the Veteran’s private treatment provider stated hypertension had deteriorated. At that time, the Veteran was taking 50 mg of Atenolol, 40 mg of Zestril (the maximum), and his doctor had the Veteran start 25 mg of HCTZ. See Private treatment records dated May 2002, July 2006, and January 2012. In January 2013, a VA examination for hypertension was obtained. The VA examiner opined hypertension and diabetes were diagnosed around the same time, so it was impossible to construct a time course for those disorders. The Board finds a new examination for hypertension is warranted as the VA examiner did not have the opportunity to consider the Veteran’s January 2020 testimony that hypertension was diagnosed after diabetes. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history). The Board notes that the Veteran has received treatment for hypertension from private medical providers, to include DotHouse Health, Dorchester House Multi-Service Center, and Brigham and Women’s Hospital, but updated private medical records have not been requested by VA. On remand, any previously unobtained ongoing relevant medical records should be procured and associated with the Veteran’s claims file. The matter is REMANDED for the following action: 1. Contact the Veteran and request that he provide the names and addresses of any and all health care providers or treatment facilities where he has received treatment for hypertension, to include, DotHouse Health (prior to May 2016 and since June 2019), Dorchester House Multi-Service Center (prior to May 2002 and since May 2016), and Brigham and Women’s Hospital (prior to June 2018 and since September 2019). After acquiring this information and obtaining any necessary authorization, attempt to obtain all the records of treatment or examination from all the sources listed by the Veteran. 2. After completing directive #1, schedule the Veteran for a new VA examination to determine the etiology of hypertension. The examiner should review the virtual file and address the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that hypertension manifested during or is otherwise related to the Veteran’s period of active service, to include an elevated blood pressure reading in 1969 and complaints of chest pain in 1968. See STRs dated August 1968 and November 1969. (b.) Whether it is at least as likely as not (50 percent or greater probability) that hypertension is proximately due to or the result of a service-connected disability, to include diabetes. In responding to (b), the VA examiner should consider and address the Veteran’s statement that hypertension was diagnosed after diabetes. See January 2020, Hearing transcript. (c.) Whether it is at least as likely as not (50 percent or greater probability) that hypertension has been aggravated (i.e., worsened beyond the normal progression of that disease) by service-connected diabetes. In responding to (c), the VA examiner should consider and address the May 2002 private treatment record stating that hypertension had worsened. See May 2002, Private treatment record. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. A comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Straughn, 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.