Citation Nr: 21025642 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-01 534 DATE: April 28, 2021 ORDER As new and material evidence has been received, the claim of entitlement to service connection for hypertension is reopened. As new and material evidence has been received, the claim of entitlement to service connection for traumatic brain injury (TBI) is reopened. As new and material evidence has been received, the claim of entitlement to service connection for a left hip disability is reopened. As new and material evidence has been received, the claim of entitlement to service connection for a left knee disability is reopened. REMANDED Entitlement to service connection for diabetes mellitus, type II, is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for TBI is remanded. Entitlement to service connection for a left hip condition is remanded. Entitlement to service connection for left knee condition is remanded. FINDINGS OF FACT 1. An October 2010 rating decision denied service connection for hypertension, TBI, left hip disability, and a left knee disability. The Veteran was notified of the rating action and of his appellate rights. The Veteran did not perfect an appeal on these issues, and new and material evidence was not submitted within one year of the decision. 2. The evidence received since the October 2010 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim for service connection for hypertension; the evidence is neither cumulative nor redundant of evidence already of record and it raises a reasonable possibility of substantiating the claim. 3. The evidence received since the October 2010 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim for service connection for TBI; the evidence is neither cumulative nor redundant of evidence already of record and it raises a reasonable possibility of substantiating the claim. 4. The evidence received since the October 2010 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim for service connection for a left hip disability; the evidence is neither cumulative nor redundant of evidence already of record and it raises a reasonable possibility of substantiating the claim. 5. The evidence received since the October 2010 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim for service connection for a left knee disability; the evidence is neither cumulative nor redundant of evidence already of record and it raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The October 2010 rating decision that denied the Veteran’s claims for entitlement to service connection for hypertension, TBI, left hip disability, and a left knee disability is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received since the October 2010 rating decision is enough to reopen the Veteran’s previously denied claim for entitlement to service connection for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. New and material evidence has been received since the October 2010 rating decision is enough to reopen the Veteran’s previously denied claim for entitlement to service connection for TBI. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 4. New and material evidence has been received since the October 2010 rating decision is enough to reopen the Veteran’s previously denied claim for entitlement to service connection for a left hip disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 5. New and material evidence has been received since the October 2010 rating decision is enough to reopen the Veteran’s previously denied claim for entitlement to service connection for left knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1979 to September 1979. He also had additional service with the Army National Guard from December 1978 to December 1985 with unverified periods of active duty for training (ACDUTRA) and/or inactive duty for training (INACDUTRA). These matters were previously remanded by the Board in October 2018. Claims to Reopen Generally, a claim that has been finally denied in an unappealed RO decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means 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 (a). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decision makers, and it is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court interprets the language of 38 C.F.R. § 3.156 (a) as creating a low threshold and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." 1. Whether new and material evidence has been received to reopen the claim of service connection for hypertension 2. Whether new and material evidence has been received to reopen the claim of service connection for TBI 3. Whether new and material evidence has been received to reopen the claim of service connection for a left hip disability 4. Whether new and material evidence has been received to reopen the claim of service connection for a left knee disability The Veteran's claims for service connection for hypertension, TBI, a left hip disability, and a left knee disability were denied in October 2010. The rating decision determined that medical records showing treatment for this condition while in service or that this disability has been clinically diagnosed for these disabilities were not received. The Veteran did not appeal this rating decision, nor did he submit any new and material evidence within a year of either rating decision. See 38 C.F.R. § 3.156 (b). The rating decision thereby became final. In August 2015, the Veteran submitted a new claim to reopen these issues. Evidence received since the October 2010 rating decision includes private medical treatment records indicating a current diagnosis of diabetes mellitus, type II, hypertension, a history of trauma to the head, and reports of pain in the left hip and left knee. As such, this evidence is presumed credible for the limited purposes of reopening the claims, and when that is done, the new information is material and is therefore enough to reopen the previously denied claims. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, these claims are reopened. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus, type II is remanded. 2. Entitlement to service connection for hypertension is remanded. 3. Entitlement to service connection for TBI is remanded. 4. Entitlement to service connection for a left hip condition is remanded. 5. Entitlement to service connection for left knee condition is remanded. As stated in the October 2018 Board remand, the Veteran asserted that his left hip, left knee, hypertension, and TBI disabilities were incurred during his National Guard service. Specifically, he maintained that: his TBI is a result of being hit in the head with a pool stick while stationed at Fort Bragg in the spring of 1984 and was treated at Duplin General Hospital; his left knee injury was sustained while he was in a fox hole at Fort Bragg in July 1985 and was treated at Fort Bragg Medical Center; his left hip injury is due to unloading beach mats weighing 100 pounds off of a truck; and he has had high blood pressure since 1985 and has been treated by a private physician, Dr. K. S., since that time. Furthermore, the Veteran stated that his diabetes mellitus, type II was secondary to his hypertension. The Board determined that although a June 2010 Memorandum reflected that the North Carolina Army National Guard had provided all personnel records available, and a finding of unavailability has been provided in regard to treatment records from the Veteran’s period of active duty, the Board found that a remand was warranted to determine if any records of medical treatment or evaluation were available for any periods of the Veteran’s ACDUTRA and/or INACDUTRA from December 1978 to December 1985. Pursuant to the Board’s remand, the RO made several attempts to locate and obtain the Veteran’s service treatment records. However, the RO was unsuccessful and the file does not contain any additional service treatment records. The Board observes that when records are unavailable, "VA has no duty to seek to obtain that which does not exist." Counts v. Brown, 6 Vet. App. 473, 477 (1994); Porter v. Brown, 5 Vet. App. 233, 237 (1993) (noting that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile). As the RO has attempted to develop the record as much as possible, any further efforts to obtain the Veteran's personnel records would be futile. As such, the Board finds that VA has fulfilled its duty to assist in obtaining such records. The Board has kept this unfortunate situation in mind while addressing the Veteran's claim and it is mindful that it has a heightened obligation both to explain its findings and conclusions and to carefully consider the benefit of the doubt doctrine. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Board recognizes that the VA treatment records reflect that the Veteran has a current diagnosis of hypertension, diabetes mellitus, reports of left hip and left knee pain, as well as a history of head trauma. The Veteran has not been provided a VA examination concerning his claims. Therefore, given the Veteran’s lay statements, the unavailability of the Veteran’s service treatment record, and his current diagnosis and reports of symptoms, the Board finds this matter must be remanded to afford the Veteran VA examinations in order to determine the nature and etiology of his claimed disabilities. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of hypertension. The VA examiner should opine as to whether the Veteran’s hypertension is at least as likely as not (50 percent or greater) to be related to an in-service injury, event, or disease. Why or why not? The VA examiner is notified that the service treatment records are unavailable. In providing the opinion, the VA examiner should consider and address the Veteran's lay statements regarding his in-service onset and continuity of symptomatology, as well as any relevant post-service treatment records. 2. Schedule the Veteran for a VA examination to determine the etiology of his diabetes mellitus, type II. The VA examiner is asked to opine the following: a. Is it at least as likely as not (50 percent or greater) that the Veteran's diabetes mellitus, type II, either began during or was otherwise caused by his military service? Why or why not? b. Is it at least as likely as not (50 percent or greater) that the Veteran's diabetes mellitus, type II, was caused by hypertension? Why or why not? c. Is it at least as likely as not (50 percent or greater) that the Veteran's diabetes mellitus, type II, was aggravated (made worse) by hypertension? Why or why not? The VA examiner is notified that the service treatment records are unavailable. In providing the opinion, the VA examiner should consider and address the Veteran’s lay statements regarding his in-service onset and continuity of symptomatology, as well as any relevant post-service treatment records. 3. Schedule the Veteran for an examination to determine the nature and etiology of any claimed TBI. The VA examiner should first diagnose whether the Veteran’s has a diagnosis of TBI. If TBI is found present, the VA examiner should opine as to whether it is at least as likely as not (50 percent or greater) to be related to an in-service injury, event, or disease. Why or why not? The VA examiner is notified that the service treatment records are unavailable. In providing the opinion, the VA examiner should consider and address the Veteran's lay statements regarding his in-service injuries/onset and continuity of symptomatology, as well as any relevant post-service treatment records. 4. Schedule the Veteran for an examination to determine the nature and etiology of any claimed left hip and left knee disabilities. The VA examiner should first clarify any current diagnosis of a left hip and left knee disability. If left hip and/or left knee disabilities are found present, the VA examiner should opine as to whether it is at least as likely as not (50 percent or greater) to be related to an in-service injury, event, or disease. Why or why not? The VA examiner is notified that the service treatment records are unavailable. In providing the opinions, the VA examiner should consider and address the Veteran's lay statements regarding his in-service injuries/onset and continuity of symptomatology, as well as any relevant post-service treatment records. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yoo, 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.