Citation Nr: 21026228 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 19-03 160 DATE: April 30, 2021 ORDER The petition to reopen the finally disallowed claim of entitlement to service connection for residuals of a stroke is granted. Entitlement to service connection for residuals of a stroke, to include as secondary to posttraumatic stress disorder (PTSD), diabetes mellitus, and hypertension, is granted. FINDINGS OF FACT 1. In an unappealed October 2012 rating decision, the Regional Office (RO) denied entitlement to service connection for residuals of a stroke. 2. The evidence associated with the claims file subsequent to the RO’s October 2012 decision is new to the record and relates to an unestablished fact necessary to substantiate the merits of the claim for entitlement to service connection for residuals of a stroke, and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s residuals of a stroke are secondary to his service-connected PTSD, diabetes mellitus, and hypertension. CONCLUSIONS OF LAW 1. The October 2012 rating decision which denied service connection for residuals of a stroke is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria for service connection for residuals of a stroke, to include as secondary to service-connected PTSD, diabetes mellitus, and hypertension are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 1965 to April 1967, to include service in the Republic of Vietnam. The issue of whether new and material evidence was submitted in order to reopen the claim for entitlement to service connection for residuals of a stroke comes before the Board on appeal from an October 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran perfected a timely appeal of this determination. See Notice of Disagreement, dated November 2018; Statement of the Case, dated December 2018; Substantive Appeal, dated January 2019. The Veteran did not request to appear before the Board for an optional hearing. This issue of whether new and material evidence has been submitted in order to reopen the claim for entitlement to service connection for residuals of a stroke was previously before the Board in March 2019, where it was denied on the merits. The Veteran filed a motion to vacate the decision in April 2019, claiming that he submitted a motion requesting a 90-day extension in March 2019, which was not ruled on prior to the Board’s March 2019 decision. The Veteran argued that this amounted to a denial of his due process. In January 2021, the Board vacated the March 2019 Board decision to resolve the due process error. The Board also granted the Veteran’s extension request and granted an additional 90-day extension from the date of the vacatur to submit argument and evidence. The January 2021 Board vacatur notified the Veteran that the Board would issue a new decision after the 90-day extension had expired. New and Material Evidence In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. If a claim for entitlement to service connection has been previously denied and that decision became final, the claim can be reopened only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a low one. Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate any element of the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). However, a new theory of entitlement does not automatically reopen a previously denied claim. See Bingham v. Nicholson, 421 F.3d 1346, 1348-49 (2005); see also Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008) (new theory of causation for same disease or injury that was subject of previously denied claim cannot be basis of new claim). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is generally presumed, unless it is inherently false or untrue or, if in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994). 1. Whether new and material evidence was submitted in order to reopen the claim for entitlement to service connection for residuals of a stroke In October 2011, the Veteran filed a claim for a stroke, which the RO denied in an October 2012 rating decision on the basis that there was no treatment for a stroke in service. The Veteran was notified of this decision and of his appeal rights in an October 2012 letter but did not perfect a timely appeal. Moreover, no evidence pertaining to the Veteran’s claim was associated with the claims file within one year of the RO’s decision. As a result, the decision became final. Relevant evidence at the time of the RO’s October 2012 denial included the Veteran’s service treatment records, private treatment records, and VA examinations. In September 2018, the Veteran requested to reopen his claim for residuals of stroke which the RO denied in October 2018. The evidence received since the October 2012 denial includes a March 2019 private medical opinion linking the Veteran’s residuals of a stroke to his service-connected PTSD, diabetes mellitus, and hypertension. The evidence obtained since the last final denial is new and material because it bears directly on the nexus element and provides the Veteran an avenue to establish service connection for the residuals of his stroke on a secondary basis. The Board must presume the credibility of all newly submitted evidence for the purpose of determining if such evidence is new and material evidence sufficient to reopen the claim. Fortuck v. Principi, 17 Vet. App. 173, 179 (2003). Accordingly, the claim for entitlement to service connection for residuals of a stroke is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for: (1) a disability that is proximately due to or the result of a service-connected disease or injury; or, (2) any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(a)-(b). In order to establish service connection for a disability on a secondary basis, there must be (1) medical evidence a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection, or link between, the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 2. Entitlement to service connection for residuals of a stroke to include as secondary to PTSD, diabetes mellitus, and hypertension The Veteran contends that he suffers from residuals of a stroke as a result of his service. In the alternative, the Veteran contends that he suffers from residuals of a stroke as secondary to his service-connected PTSD, diabetes mellitus, and hypertension. The Veteran’s service treatment records are silent for any signs or symptoms of a stroke. The Veteran’s post-service medical records include VA treatment records indicating that the Veteran had a history of two strokes; one in 1985 and again in 2005. The Veteran also reported having a stroke in 1961 but indicated that he was unsure of the date. Elsewhere the Veteran reported that his symptoms began in 1985 after his first stroke.. The Veteran submitted a March 2019 private medical opinion indicating that the Veteran’s “service connected PTSD and diabetes and his hypertension aided in the development of his CVA and continues to aggravate his residual symptoms.” The private examiner noted that “research has shown anxiety and depression are predictive of later incidence of hypertension,” adding that “weakened arteries in the brain, resulting from high blood pressure, put an individual at a much higher risk for stroke.” The examiner also noted that “severe emotional distress negatively impacts an individual’s overall health and wellbeing and extreme stress induces the same biochemical change that cause stroke damage in the brain.” He noted that “there is increasing evidence that insulin resistance/hyperinsulinemia may play a key role in the pathogenesis of hypertension.” The Board finds that the March 2019 medical opinion is probative medical evidence showing that the Veteran’s residuals of a stroke are proximately due to his service-connected disabilities of PTSD, diabetes mellitus, and hypertension. The opinion is supported by reasons and bases; there are no competent opinions to the contrary. Accordingly, the Board finds that service connection for residuals of a stroke is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morrad, 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.