Citation Nr: 21012260 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-02 443 DATE: March 3, 2021 ORDER New and material evidence having been received, the petition to reopen the Veteran’s claim of service connection for hypertension is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a respiratory disorder is remanded. FINDINGS OF FACT 1. A November 2009 Board decision denied the Veteran’s claim of service connection for hypertension. The Board decision was unappealed and became final. 2. Evidence received since the November 2009 decision is neither cumulative nor redundant of the evidence of record at the time of the last final denial and relates to an unestablished fact necessary to substantiate a claim of service connection of hypertension. CONCLUSION OF LAW New and material evidence has been received since the November 2009 Board decision, denying service connection for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from June 1967 to May 1969. This case is before the Board of Veterans’ Appeals (Board) from a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s claims of service connection for hypertension and respiratory disorder were initially denied in an April 2003 rating decision. The RO denied the Veteran’s claim for respiratory disorder because the medical evidence of record failed to show that the disability had been clinically diagnosed. The Veteran did not appeal his claim for respiratory disorder. New evidence was not received until June 2004, more than one year after the rating decision. Accordingly, the April 2003 rating decision is final. The Veteran petitioned to reopen the claim, which was denied by the November 2012 rating decision. The Veteran appealed that decision to the Board. In an October 2018 Board decision, the claim was reopened and remanded for additional development. With regard to the Veteran’s hypertension claim, after the April 2003 denial, the Veteran appealed the claim, and the Board remanded the claim in September 2007. The Board then denied the claim in November 2009. That decision was not appealed and became final. The Veteran’s request to reopen the claim was denied by the November 2012 rating decision at issue. The Veteran appealed that decision to the Board and by an October 2018 Board decision, the claim was denied. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a January 2020 Joint Motion for Partial Remand (JMR), the Court vacated that portion of the Board’s October 2018 decision that denied reopening the Veteran’s hypertension claim, finding that the Board did not address the materiality of the Veteran’s statement referencing his psychiatrist’s opinion that his hypertension is related to his PTSD. Additionally, the Court found that the Board did not ensure records from Vista imaging had been associated with the record. In August 2020, the Board remanded these matters to obtain the November 29, 2012, Life watch Report Note and the October 2, 2012 Cardiology Consult Note from Vista Imaging. Documents from Life watch covering treatment dates October 2, 2012 to October 22, 2012 have been associated with the record (9/25/2020 CAPRI). Moreover, it was explained in the October 2020 SSOC that there was no actual treatment received on November 29, 2012; that was simply the day the records were signed by the Veteran’s VA physician. Accordingly, substantial compliance is found as to that remand directive. Regarding the October 2018 remand directives, additional development with regard to the Veteran’s respiratory condition has not been adequately undertaken. Finding there has not been substantial compliance with the Board’s October 2018 remand directives in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998), the Board regrets additional remand is required as outlined in the remand section. New and Material Evidence regarding the Veteran’s claim for Hypertension. Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). For the purpose of reopening a claim, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Veteran’s hypertension claim was denied in a November 2009 Board decision. The Board noted the absence of medical opinion indicating that the Veteran’s hypertension was caused, aggravated, or in any way affected by his PTSD (11/20/2009 BVA Decision). The Veteran was reportedly told by his psychiatrist that his PTSD could be the cause of his hypertension (2/21/2020 CAVC Decision, pg. 18; 5/09/2012 VA 21-4138 Statement In Support of Claim). The described testimonial evidence was received after the prior final decision, therefore is “new” as it had not been previously submitted to agency decision makers. The evidence is also “material” as it directly pertains to the basis for the prior final denial, that is whether there is medical evidence associating the Veteran’s hypertension to his service-connected PTSD. Presuming the credibility of the evidence, an in light of the low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim, the Board finds new and material evidence received since the prior final decision is sufficient to reopen the claim of entitlement to service connection for hypertension. Accordingly, the Veteran’s petition to reopen the claim of service connection of hypertension is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND Hypertension The Veteran was afforded a September 2018 VA examination, with an October 2018 addendum to opinion to address apparent conflicts in the medical evidence. In rendering the September 2018 opinion, the VA examiner relied on the absence of medical evidence and in questioning why the Veteran sought post service chiropractic treatment, did not address the Veteran’s assertion of record that his back was originally injured during service, and has hurt consistently from his twenties to his seventies. The Veteran has claimed entitlement to service connection for hypertension secondary to PTSD. Additionally, the record confirms the Veteran’s service in Vietnam from May 1968 to May 1969. Pursuant to 38 C.F.R. § 3.307 (a)(6)(iii), in service exposure to herbicide agents is presumed. While hypertension is not a disease presumed associated with herbicide agents under 38 C.F.R. § 3.309 (e), consideration on a direct basis is warranted by the record. The Veteran was afforded a VA examination in September 2018 that did not confirm his diagnosis with hypertension. An October 2018 addendum medical opinion was obtained to address conflicting medical evidence of record. The September 2018 opinion included a positive nexus opinion that was retracted in October 2018. The October 2018 addendum opinion confirmed diagnoses of paroxysmal atrial fibrillation and orthostatic hypotension (9/25/2018 C&P Exam), finding that these disorders were less likely than not related to service; the examination did not address hypertension. The examiner explained the interview based METs are totally subjective and influenced also by his comorbid conditions of hypertension, esophageal dysmotility, Hyperlipidemia, s/p back surgery, usage of spinal stimulator, bradycardia/chronotropic incompetence, and PTSD with depression. It is not clear whether the examiner was describing cardiovascular symptoms that were caused by or aggravated by the Veteran’s PTSD (9/25/2018 C&P Exam). Although the examiner provided an opinion that the Veteran’s paroxysmal atrial fibrillation and orthostatic hypotension are less likely as not (less than 50% probability) incurred in or caused by herbicide exposure, hypertension was not addressed. Therefore, remand is required for clarification. Respiratory disorder. The Veteran has contended he has a respiratory condition due to asbestos exposure (12/17/2012 NOD) and in the alternative, herbicide exposure (5/09/2012 VA 21-4138 Statement In Support of Claim). His exposure to herbicides during service in Vietnam is presumed. The Veteran’s post service medical records confirm that he is prescribed medication for breathing difficulty and as recently as February 2020 he complained of difficulty with inhalation and exhalation (6/18/2020 VAMC Other Output / Reports pg. 43). The Veteran has not been afforded a VA examination to address the nature and etiology of any respiratory disorder, and whether such condition has a nexus to his active service, to include asbestos and/or herbicide agent exposure. Remand is required to afford the Veteran an examination to address his complaints of a respiratory condition, and provide an opinion as to nexus to service. The matters are REMANDED for the following action: 1. Again request the November 29, 2012, Lifewatch Report Note from VistA Imaging and associate such with the record. 2. Hypertension. Forward the claims file to the October 2018 examiner if available (if not available, to a comparably qualified and appropriate clinician) for an addendum opinion consistent with this remand. If the following cannot be addressed without an examination, an examination should be scheduled. The examiner is requested to render an opinion as to the whether it is at least as likely as not (i.e., a likelihood of 50 percent or more) that any currently diagnosed hypertension or other cardiovascular disease or disability is a result of service or any incident occurring during service, to include presumed herbicide exposure. The examiner should also provide an opinion as to whether any currently diagnosed hypertension or cardiovascular disease or disability is at least as likely as not (50 percent probability) proximately due to service-connected PTSD. The examiner should specifically address the Veteran’s contention that his psychiatrist told him that his PTSD could be the cause of his hypertension. The examiner should address whether it is as likely as not (50 percent probability) that the Veteran’s service-connected PTSD has aggravated his hypertension beyond its natural progression. If aggravation is found, the examiner should identify baseline level of disability prior to such aggravation. The examiner is reminded to consider the Veteran’s lay reports, and a reason must be provided if the Veteran’s lay reports are rejected. Lay statements cannot be rejected solely due to a lack of medical documentation. If there is a medical reason to accept or not accept the Veteran’s contentions, the examiner should provide them. If the absence of medical documentation is relevant, the relevance must be explained because the absence of evidence is not positive evidence of the existence or non-existence of an event. If the examiner is able to gather additional understanding or information regarding the circumstances surrounding any inservice injury or event, the examiner should include that information in his remarks. The examiner should reconcile any conflicting medical evidence of record to the extent possible. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and explain why this is so, (e.g., whether an opinion is beyond what any medical practitioner might be able to provide, based on the evidence of record and current medical knowledge). 3. Respiratory Condition. Schedule the Veteran for an examination by an appropriately qualified clinician to determine the nature and etiology of any existing respiratory disorder or disability. The examiner should review the entire claims file and this remand in conjunction with the examination. The examiner is requested to render an opinion as to whether it is at least as likely as not (i.e., a likelihood of 50 percent or more) that any currently diagnosed respiratory disorder/disability is a result of service or any incident occurring during service, to include presumed herbicide exposure or contended asbestos exposure. In formulating the opinion, the examiner should address the medication the Veteran is prescribed for breathing difficulty. The examiner is reminded to consider the Veteran’s lay reports, and a reason must be provided if the Veteran’s lay reports are rejected. Lay statements cannot be rejected solely due to a lack of medical documentation. If there is a medical reason to accept or not accept the Veteran’s contentions, the examiner should provide them. If the absence of medical documentation is relevant, the relevance must be explained because the absence of evidence is not positive evidence of the existence or non-existence of an event. If the examiner is able to gather additional understanding or information regarding the circumstances surrounding any inservice injury or event, the examiner should include that information in his remarks. (Continued on the next page)   The examiner should reconcile any conflicting medical evidence of record to the extent possible. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and explain why this is so, (e.g., whether an opinion is beyond what any medical practitioner might be able to provide, based on the evidence of record and current medical knowledge). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. A. Myers 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.