Citation Nr: 21010397 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 18-13 317 DATE: February 24, 2021 ORDER The previously denied claim of entitlement to service connection for hypertension is reopened. The previously denied claim of entitlement to service connection for coronary artery disease is reopened. Entitlement to service connection for coronary artery disease with valvular heart disease, to include as due to herbicide exposure is granted. REMANDED Entitlement to service connection for hypertension, to include as due to herbicide exposure is remanded. FINDINGS OF FACT 1. A July 2013 rating decision denied entitlement to service connection for hypertension and coronary artery disease. The Veteran did not appeal that decision or submit new and material evidence within one year. 2. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for hypertension. 3. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for coronary artery disease. 4. The Veteran had service in the Republic of Vietnam during the Vietnam Era and is diagnosed with coronary artery disease and valvular heart disease. CONCLUSIONS OF LAW 1. The criteria to reopen the previously denied claim of entitlement to service connection for hypertension have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. 2. The criteria to reopen the previously denied claim of entitlement to service connection for coronary artery disease have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for coronary artery disease with valvular heart disease, to include as due to herbicide exposure have been met. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the U.S. Air Force from July 1968 until May 1972. The Veteran’s service medals include the Vietnam Service Medal with 1 Bronze Service Star and the Republic of Vietnam Campaign Medal. Service Connection 1. The previously denied claim of entitlement to service connection for hypertension is reopened. 2. The previously denied claim of entitlement to service connection for coronary artery disease is reopened. The Veteran seeks to reopen the previously denied claims of entitlement to service connection for hypertension and coronary artery disease. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2019). A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2012). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). New evidence means existing evidence not previously submitted to agency decision makers. 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. 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 (2019). For purposes of reopening a claim, the credibility of newly submitted evidence is generally 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. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted 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, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source. 38 C.F.R. § 3.156(c)(2). To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In a July 2013 rating decision, the RO denied service connection for coronary artery disease based on a finding that the disease did not have onset in service or within the relevant presumptive period, and that the Veteran was not exposed to herbicides in service. The claim of entitlement to service connection for hypertension was also denied because it did not have onset during the Veteran’s period of service, did not manifest within the relevant presumptive period, and was not otherwise related to service. The Veteran did not appeal that decision or submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the 2013 decision included service treatment records (STRs), service personnel records (SPRs), private treatment records, and testimony and other submissions by the Veteran. The STRs did not document treatment for hypertension or symptoms of hypertension and the SPRs did not show service in the Republic of Vietnam. In June 2013, the Veteran submitted a Nui Ba Den unit patch photo and a Tropic Lightning Association membership Card, along with a statement from the Veteran that he was on a temporary duty assignment at the Nui Ba Den site in South Vietnam. Also of record was a VA memorandum concluding there was insufficient evidence of service in Vietnam. Overall, the RO concluded the Veteran did not have service in the Republic of Vietnam. Evidence submitted after the 2013 decision includes additional testimony from the Veteran. In October 2016 correspondence, the Veteran wrote that he was stationed at the Korat Royal Thai Air Base near the perimeter where herbicides were used to control vegetation. He included maps and photographs of the base and perimeter to demonstrate his proximity to herbicides. At the October 2020 hearing, the Veteran provided detailed testimony regarding his temporary assignment in Vietnam, and reported patrolling an area that had been sprayed with herbicides. The Veteran also claims his hypertension is due to herbicide exposure. The Board finds that new and material evidence has been presented. The additional lay testimony is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim - evidence of in-service exposure to herbicides. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran’s claims are reopened. 3. Entitlement to service connection for coronary artery disease with valvular heart disease, to include as due to herbicide exposure is granted. The Veteran seeks service connection benefits for coronary artery disease, and asserts he was exposed to Agent Orange during his period of service. For veterans presumed to have been exposed to herbicides, certain enumerated diseases shall be service connected even though there is no record of such disease during service, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases which are deemed to be associated with herbicide exposure include coronary artery disease with valvular heart disease (ischemic heart disease). 38 C.F.R. § 3.309(e). A Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). The Vietnam era is the period beginning on February 28, 1961 and ending on May 7, 1975 for veterans who served in the Republic of Vietnam, and the period beginning on February 28, 1961 and ending on May 7, 1975, in all other cases. 38 U.S.C. § 101(29)(A). Service in the Republic of Vietnam is “service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.” 38 C.F.R. § 3.307(a)(6)(iii). VA has interpreted this regulation to require “the service member’s presence at some point on the landmass or the inland waters of Vietnam” for entitlement to a presumption of exposure to Agent Orange. Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008), cert. denied, 129 S.Ct. 1002 (2009). Here, coronary artery disease with valvular heart disease has been diagnosed during the appeal period. See January 2017 VA examination report; see August 2017 private medical record. Thus, there is a current diagnosis. The remaining question before the Board is whether the Veteran was exposed to herbicides in service. Here, the Board finds the Veteran’s reports of a temporary duty assignment in the Republic of Vietnam during the Vietnam era to be credible despite the lack of verification of that assignment in the STRs or SPRs. At the October 2020 hearing, the Veteran testified that he was on temporary duty assignment to the Republic of Vietnam from approximately January 31, 1970 through the first Tuesday of March 1970. He explained he was attached to the 553rd and his job was to monitor sensors at a relay station in Nui Ba Den in Vietnam. During his time there, he also patrolled the perimeters. The Veteran has submitted photographs of himself he asserts were taken in Vietnam, and a photograph of a patch he received with the words “Nui Ba Den Signal Relay.” He asserts he was awarded the patch for his temporary assignment duties. The Veteran’s DD 214 documents he was in Indochina during the Vietnam Era but does not document in-country Vietnam service. The Veteran’s military occupation specialty was a radio communications specialist, which is consistent with the duties he described performing in Vietnam. The Veteran’s SPRs show that during the period he asserts he was participating in missions in Vietnam, his command location was in Thailand and he was working as a radio repairman. This is also consistent with the Veteran’s testimony that he was in Thailand and put on temporary assignment related to his duties as a radio repairman. The Veteran’s testimony has been very detailed, the testimony is consistent with the nature of his service and military occupational specialty, and the Board finds him credible. As a result, the Board finds the Veteran was exposed to herbicides while on temporary duty assignment in Nui Ba Den, Vietnam. The Veteran is presumed exposed to herbicides and the diagnosed coronary artery disease with valvular heart disease is presumed related to that exposure. Thus, the claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include as due to herbicide exposure is remanded. This issue is remanded for a VA medical opinion. VA obtained an examination in January 2017, and that examiner documented a current diagnosis of hypertension but did not provide an opinion on whether hypertension was etiologically related to the Veteran’s period of service. VA’s duty to assist includes obtaining a medical opinion when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The record demonstrates hypertension has been diagnosed during the appeal period and the Board has found the Veteran was exposed to Agent Orange. A 2018 National Academy of Sciences (NAS)/Institute of Medicine (IOM), Veterans and Agent Orange report update has been released that now shows hypertension was upgraded from its previous classification in the category of “limited or suggestive” evidence of an association to the category of “sufficient” evidence of an association. According to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. Because there is evidence of a currently diagnosed disability, an in-service exposure, and an indication that the current disability may be associated with the in-service exposure, remand for a VA opinion is required. The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the etiology of the hypertension from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that hypertension had onset is etiologically related active service, to include the conceded in-service exposure to Agent Orange. (b.) The examiner must specifically address the 2018 National Academy of Sciences (NAS)/Institute of Medicine (IOM), Veterans and Agent Orange report update that upgrades hypertension from its previous classification in the category of “limited or suggestive” evidence of an association to the category of “sufficient” evidence of an association. According to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Smith, 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.