Citation Nr: 21030262 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-63 758 DATE: May 18, 2021 ORDER The claim for service connection for hypertension is reopened. Service connection for hypertension is granted. Service connection for chronic kidney disease, to include as secondary to service-connected hypertension, is granted. FINDINGS OF FACT 1. In a December 2008 rating decision, the RO denied service connection for hypertension. The Veteran appealed that decision but withdrew the appeal. A March 2012 Board decision dismissed the appeal. The December 2008 rating decision was final. 2. Evidence received since December 2008 rating decision, by itself, or in conjunction with previously considered evidence, does relate to an unestablished fact necessary to substantiate the underlying claim for service connection for hypertension. 3. The Veteran's hypertension is related to herbicide agent exposure. 4. The Veteran's chronic kidney disease is caused by service-connected hypertension. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for hypertension. 38 U.S.C. §§ 5108, 7105; 3(2012)8 C.F.R. § 3.156 (2019). 2. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1116, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 3. The criteria for service connection for chronic kidney disease, to include as secondary to service-connected hypertension, have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to January 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Waco, Texas. In September 2019 the Veteran presented testimony at a video hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the claims file. These issues were previously before the Board in February 2020, when it was remanded for further development, that development was completed, and the case has since been returned to the Board for appellate review. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). In light of the Board's favorable decision, however, any deficiencies in VA's duties to notify and assist the Veteran with his claim decided herein are moot. Claim to Reopen Legal Criteria Generally, when a claim is disallowed, it may not be reopened and allowed unless new and material evidence is submitted.38U.S.C. §5108. "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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80(2003). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold, intended to "enable rather than preclude reopening." Shade v. Shinseki, 24 Vet. App. 110, 121(2010). Factual Background In a December 2008 rating decision, the RO denied service connection for hypertension because there was no in-service incident. The Veteran submitted a January 2009 notice of disagreement (NOD). The RO issued a June 2009 statement of case (SOC). The Veteran submitted a July 2009 substantive appeal. During the December 2011 Board hearing the Veteran withdrew his appeal. The appeal was dismissed in a March 2012 Board decision. The December 2008 rating decision is final, based on the evidence then of record, because the NOD was withdrawn. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Veteran filed a claim to reopen in June 2014. Analysis Evidence of record at the time of the December 2008 decision included service treatment records (STRs), private treatment records, and an October 2008 VA examination. The private treatment records showed treatment for high blood pressure. The STRs did not show elevated blood pressure in-service. The October 2008 VA examination did not provide an opinion regarding hypertension. Evidence submitted after the December 2008 rating decision included 1) May 2019 VA examination and opinion; 2) September 2019 Board hearing testimony; and 3) February 2020 VA opinion. During the September 2019 Board hearing the Veteran stated his hypertension was caused by herbicide agent exposure in-service. The May 2019 VA examination stated the Veteran's hypertension was not secondary to service- connected PTSD. The March 2020 VA opinion stated hypertension was related to herbicide agent exposure. The Board finds that new and material evidence has been presented. The evidence, including September 2019 Board hearing testimony and February 2020 VA opinion, are 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 nexus. 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. Service Connection Hypertension Legal Criteria Service connection may be granted for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). 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). Factual Background & Analysis During the September 2019 Board hearing the Veteran stated his belief that his hypertension was related to herbicide agent exposure in-service. First, there is a current disability. A May 2019 VA examination confirmed a diagnosis of hypertension. The first element of service connection is met. Second, there was an in-service injury. The Veteran's service personnel records (SPRs) showed service in Vietnam for several years from July 1967 to September 1968. The Veteran has service in Vietnam during the Vietnam era and is presumed exposed to herbicide agents. Accordingly, the second element of service connection has been met. Lastly, the Veteran's hypertension is related to herbicide agent exposure. A February 2020 VA examiner opined that hypertension was at least as likely as not incurred in or caused by service. The examiner explained a study links occupational herbicide exposure/ Vietnam service status as significantly associated with hypertension risk. The examiner cited to the study. The examiner stated the Veteran's STRs did not reflect elevated blood pressure nor treatment for hypertension until several years post service. Additionally, the examiner stated the Veteran had other risk factors for hypertension including previous smoker, obesity, and coronary artery disease. The examiner concluded that it was at least as likely as not the condition was incurred in-service. In a September 2020 addendum the examiner stated there was no evidence of hypertension in the STRs to support direct service connection. The Board affords significant probative weight to the February 2020 opinion. First, the examiner cited to literature supporting the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of an opinion comes from its rationale or underlying reasoning). Second, the opinion consistent with the Veteran's prior medical history. Notably, the examiner mentioned coronary artery disease as an additional risk factor. A January 2021 rating decision granted service- connection for ischemic heart disease associated with herbicide agent exposure. Lastly, there are no contrary opinions of record. The September 2020 addendum does not address herbicide agent exposure. The addendum only address there is no direct service connection based on hypertension in-service. For the reasons outlined above, the Board finds that service connection is warranted. Chronic Kidney Disease Legal Criteria Establishing secondary service connection requires evidence: (1) of a current disability (for which secondary service connection is sought); (2) of a service-connected disability; and (3) that the current disability was either caused or aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). Factual Background In June 2014, the Veteran filed for service connection for kidney problems. During the September 2019 Board hearing, the Veteran testified that his private doctor had opined that his kidney disease was related to his hypertension. Analysis First, there is a current disability. The May 2019 VA examination showed a diagnosis for chronic kidney disease. Accordingly, the first element of service connection is warranted. Second, there is a service-connected disability. This Board decision granted service connection for hypertension. Accordingly, the second element of service connection is met. Lastly, the Veteran's chronic kidney disease is caused by service- connected hypertension. The Veteran submitted an September 2019 opinion from his private treatment provider. The private doctor explained they have treated the Veteran since February 2017. The private provider opined the renal failure is likely due to the diagnosis of hypertension. The Board affords significant weight to the September 2019 opinion. First, the private doctor has regularly treated the Veteran for several years. See White v. Principi, 243 F.3d 1378, 1380-81 (Fed. Cir. 2001) (the Board may consider a lengthy treating relationship along with all the other evidence when assigning probative weight). Second, the opinion is consistent with the record. The May 2019 VA examination stated chronic kidney disease was secondary to hypertension. Additionally, an October 2014 VA nephrology note stated etiology likely secondary to hypertension. Lastly, there are no contrary opinions of record. For the reasons outlined above, the Board finds that service connection is warranted. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bruton, Cherrelle M. 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.