Citation Nr: 21031024 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-57 464 DATE: May 20, 2021 ORDER Entitlement to an effective date earlier than April 7, 2014, for the grant of service connection for coronary artery disease is dismissed. Reopening of entitlement to service connection for hypertension is granted. REMANDED Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. On the record of the June 2020 Board hearing, the Veteran withdrew his appeal of entitlement to an effective date earlier than April 7, 2014, for the grant of service connection for coronary artery disease. 2. In an unappealed December 1986 decision, VA denied service connection for hypertension; at the time of the December 1986 decision, the evidence did not substantiate (1) a current disability, (2) an injury or disease in service, and/or (3) a nexus between a current disability and service. 3. The evidence associated with the claims file subsequent to the December 1986 decision relates to the unestablished fact of a current disability, which is necessary to substantiate service connection for hypertension; it is neither cumulative nor redundant of evidence previously of record; and it raises a reasonable possibility of substantiating service connection for hypertension. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal regarding entitlement to an effective date earlier than April 7, 2014, for the grant of service connection for coronary artery disease are met. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. § 20.205 (2021). 2. The December 1986 decision is final with respect to entitlement to service connection for hypertension. 38 U.S.C. § 7105 (West 2014). 3. The criteria for reopening the claim of entitlement to service connection for hypertension are met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from October 1971 to October 1975. He was awarded the Combat Action Ribbon. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In June 2020, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e). At the Board hearing, the Veteran was informed of the basis for the RO's denial of his claims and he was informed of the information and evidence necessary to substantiate each claim. 38 C.F.R. § 3.103. A transcript of the hearing is associated with the claims file. The Veteran withdrew his appeal of entitlement to service connection for a heart murmur on the record of the hearing at the agency of original jurisdiction. As that withdrawal occurred prior to transfer of the appeal to the Board, a dismissal of the issue is not required (Record 11/09/2016 at 23). Withdrawal of Appeal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (West 2014). Entitlement to an effective date earlier than April 7, 2014, for the grant of service connection for coronary artery disease. On the record of the June 2020 Board hearing, the Veteran withdrew his appeal of entitlement to an effective date earlier than April 7, 2014, for the grant of service connection for coronary artery disease (Record 06/05/2020 at 2). The Veteran demonstrated that he had a full understanding of the consequences of withdrawal and the basis for the withdrawal, and he showed clear intent to withdraw. DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011); Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal. As the appeal has been withdrawn, the Board finds that dismissal is appropriate. Application to Reopen In a December 1986 rating decision, VA denied service connection for hypertension. The Veteran did not file a Notice of Disagreement within one year of that decision. Relevant service department records were not received subsequent to that decision. The current appeal arises from an increased rating claim received at VA on April 2014. VA may reopen any denied and final claim 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). For claims to reopen decided prior to February 19, 2019, new evidence is defined as 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, it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Where new and material evidence is received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). This affects the finality of the prior denial. 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. 38 C.F.R. § 3.156(c). This also affects the finality of the prior denial. To reopen a denied and final claim, it is not required that new and material evidence be received as to each previously unproven element of a claim. For instance, where a prior denial was based on both (1) the lack of current disability, and (2) the lack of an established nexus, newly submitted evidence of a current disability is, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). At the time of the December 1986 decision, the record did not contain a diagnosis of hypertension. Thus, the element of current disability was not substantiated. Since the December 1986 decision, the record now contains evidence of a diagnosis of hypertension. Accordingly, reopening of the claim of entitlement to service connection for hypertension is warranted. REASONS FOR REMAND Entitlement to service connection for hypertension. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For purposes of service connection for a disability resulting from exposure to herbicide agents, including a presumption of service connection, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1113, 1116; 38 C.F.R. § 3.307(a)(6)(iii). Certain diseases shall be service connected presumptively for veterans with service in the Republic of Vietnam, even if there is no record of such disease during service. 38 C.F.R. § 3.307(a). The diseases that will be presumed to be related to service as a result of exposure to herbicides are enumerated in 38 C.F.R. § 3.309(e), but a claimant is not precluded from establishing service connection for other disabilities with proof of actual direct causation, i.e., a link between the current disability and in-service exposure to herbicides. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran has a diagnosis of hypertension. He was exposed to herbicide agents during his service. He is also service-connected for coronary artery disease. The Veteran was afforded an opportunity to submit a medical opinion at the Board hearing. He did not do so. However, the Board finds that a medical opinion is necessary to determine whether his hypertension is related either to exposure to herbicide agents or to his service-connected heart disease. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matter is REMANDED for the following action: 1. Obtain a medical opinion to determine the nature and etiology of the Veteran's hypertension. The relevant documents in the claims file should be made available to the VA examiner. If a VA examination is deemed to be necessary, an examination should be scheduled. Please note the Veteran's assertion that he has been treated for hypertension since he left service, and that he believes the blood pressure reading at service separation was falsified. The VA examiner is requested to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the claimed hypertension (1) is causally or etiologically related to the Veteran's active service, to include exposure to herbicide agents; or, (2) is causally or etiologically related to the service-connected coronary artery disease; or (3) were worsened beyond natural progress by the service-connected coronary artery disease. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation or worsening as it is to find against causation or worsening. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Readjudicate the remanded claim. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Cramp 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.