Citation Nr: 21026167 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 15-02 827 DATE: April 30, 2021 ORDER Reopening of the claim for entitlement to service connection for hypertension is granted. REMAND Entitlement to service connection for hypertension is remanded. FINDING OF FACT The evidence associated with the claims file since the October 2006 final denial includes evidence that relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim for service connection for hypertension. CONCLUSION OF LAW The criteria for reopening of the claim for entitlement to service connection for hypertension are met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 19.20, 19.21, 19.52(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1967 to January 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. A Board hearing was conducted at the RO in Atlanta, Georgia. A transcript of this hearing is contained within the electronic claims file. In a July 2018 decision, the Board found that reopening of this claim was not warranted for lack of new and material evidence (under 38 C.F.R. § 3.156(a)) since VA’s most recent final denial of this claim in October 2006. The Veteran appealed that determination to the United States Court of Appeals for Veterans Claims (CAVC). In a September 10, 2020, Memorandum Decision (Mem. Dec.), the CAVC reversed the Board’s July 2018 decision, holding that the Board failed to analyze whether reconsideration of the Veteran’s claim was appropriate under 38 C.F.R. § 3.156(c)(1). The details concerning the CAVC’s vacatur and remand will be discussed below. Reconsideration of the Claim under 38 C.F.R. § 3.156(c)(1) Notwithstanding any other section in this part, 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 and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to: (i) service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met; (ii) additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records; and (iii) declassified records that could not have been obtained because the records were classified when VA decided the claim. 38 C.F.R. § 3.156(c)(1). The relevant facts for the CAVC’s vacatur now will be discussed. When the RO first denied the Veteran’s claim, it noted that it reviewed service treatment records (STRs) from June 6, 1966, to December 14, 1970. After the Veteran filed the instant claim, VA sent in June 2014 to the Veteran a letter stating, in pertinent part, that it had yet to receive the Veteran’s “complete [STRs].” The August 2014 rating decision now on appeal notes that it received military personnel records (MPRs) on May 3, 2014, and STRs on May 3, 2014, and July 7, 2014. The Board’s obligation now is twofold: it first must determine whether any of the STRs or MPRs received in May and July of 2014 were duplicative or in addition to those reviewed by the RO back in October 2006; if these records are not duplicative, then the Board must assess whether they are relevant, permitting reconsideration under 38 C.F.R. § 3.156(c)(1). Evaluating the record, the Board finds that the STRs and MPRs reviewed in the August 2014 decision are duplicative of the records previously reviewed and/or irrelevant, precluding reconsideration under 38 C.F.R. § 3.156(c)(1). The Board will explain. The electronic claims file does not show any associated STRs or MPRs at the time of the October 2006 rating decision; however, the RO noted that it reviewed STRs from June 9, 1966, through December 14, 1970. The STRs associated with the claims file in May and July of 2014 cover the exact same period as noted in the October 2006 decision: from the Veteran’s enlistment examination (June 9, 1966) to his separation examination (December 14, 1970). The June 2014 letter, thus, makes sense. For whatever reason, these duplicate records were not previously associated with the electronic claims file, so it would have appeared to VA adjudicators, at the time of the instant claim, that it did not have all the Veteran’s STRs. The remainder of the STRs were uploaded in July 2014, and both decisions noted that the STRs do not show complaints of, treatment for, or diagnosis of hypertension. Thus, the Board is confident that the RO reviewed in October 2006 all the STRs that the August 2014 decision noted that it obtained in May and July of 2014. Therefore, the Board cannot find that VA received or associated with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. See id. With respect to the MPRs, the Board concedes that the RO made no mention in October 2006 that they were reviewed. Nevertheless, the Board does not find such documents to be relevant. Relevant means “[l]ogically connected and tending to prove or disprove a matter in issue.” Relevant, BLACK’S LAW DICTIONARY (9th ed. 2009) (emphasis added). The MPRs neither logically are connected nor tend to prove or disprove whether the Veteran had hypertension during service. Simply put, these documents do not contain medical information, unlike the STRs. Thus, the MPRs also cannot serve as the basis for reconsideration of this claim. See 38 C.F.R. § 3.156(c)(1). Reopening of the Claim under 38 C.F.R. § 3.156(a) The Veteran previously argued to the CAVC that the Board, in the alternative, also erred in denying to reopen the claim under 38 C.F.R. § 3.156(a). August 26, 2019, Brief for Appellant at 16. While the CAVC only instructed the Board to conduct an analysis under 38 C.F.R. § 3.156(c)(1), Mem. Dec. at 4, it vacated the entire July 2018 Board decision. Id. at 5. Thus, the Board must readdress reopening under 38 C.F.R. § 3.156(a). VA may reopen a claim that previously has been denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers, and material evidence is 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 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). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). The CAVC has held that 38 C.F.R. § 3.156(a) must be read as creating a low threshold, which suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117–18 (2010). Furthermore, evidence as to each previously unproven element of a claim is not required for the claim to be reopened. Id. at 121. In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence generally is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of any RO determinations that new and material evidence has been submitted to reopen a previously denied claim, the Board still must review whether new and material evidence has been submitted. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Reevaluating its prior decision, the Board recognizes that it erred in finding that reopening under 38 C.F.R. § 3.156(a) was not warranted. The Board previously found that the October 2006 rating decision denied the Veteran’s claim because there was “no evidence that hypertension manifested during active service or within one year of service, and that there was no evidence of a medical nexus between the Veteran’s current disability and active service.” July 19, 2018, Board Decision (Bd. Dec.) at 3–4. That statement, however, is not entirely accurate. The October 2006 rating decision stated: Service connection for hypertension is denied since there is no evidence the claimed condition exists. Service connection also is denied as evidence fails to show that this condition occurred in or was aggravated by military service. Records also failed to show a diagnosis of hypertension within the year of separation from military service. The critical fact that the Board overlooked is that VA stated that the Veteran had no current diagnosis of hypertension. Since the October 2006 final denial, as the Veteran argued on appeal to the CAVC, there are both private and VA medical records that show the Veteran has a diagnosis of hypertension. Thus, the Board finds that those records are new and material as they both previously were not before VA adjudicators and relate to an unestablished fact necessary to substantiate the claim (a current diagnosis). Therefore, reopening of the Veteran’s claim is warranted. See 38 C.F.R. § 3.156(a). REASONS FOR REMAND If further evidence, clarification of the evidence, correction of a procedural defect, or any other action is essential for a proper appellate decision, a Veterans Law Judge shall remand the case to the agency of original jurisdiction, specifying the action to be undertaken. 38 C.F.R. § 20.904(a). When the Board reopens a claim after the RO has denied reopening that same claim, the matter generally must be returned to the RO for consideration of the merits. Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010) (holding that the “RO should, in the first instance, consider that new evidence and decide the matter so as to preserve for that claimant the one review on appeal as provided by [38 U.S.C. §] 7104.”). The Board should proceed on the merits only where it has secured a waiver from the Veteran or it determines that proceeding would not prejudice the Veteran. Id. at 399–400. The Board notes that, while the new and material evidence confirms a diagnosis of hypertension, the Board has no way of verifying whether that diagnosis conforms to VA’s specific definition. Under VA law, hypertension must be verified by readings taken two or more times on at least three different days. Hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, DC 7101 Note (1). Because the Board cannot confirm whether the Veteran has met VA’s definition of hypertension at any point during the pendency of his claim, remand is necessary for an initial examination to clarify the evidence of record. See 38 C.F.R. §§ 4.104, 20.904(a). The matter is REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Schedule the Veteran for an examination. The examiner shall answer the following: (a.) Has the Veteran had a diagnosis of hypertension, as defined by VA, at any time during the pendency of his claim (March 2014–present)? (b.) If so, then is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s hypertension occurred in, or is the result of, his period of active duty service, to include as due to asbestos exposure; and/or as proximately due to, the result of, or aggravated by, service-connected asbestosis with pulmonary artery hypertension? Note: The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale supporting the examiner’s opinions must be provided. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 3. Conduct any other development deemed necessary and then readjudicate the Veteran’s claim. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or the CAVC must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, 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.