Citation Nr: 21031444 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 16-35 559 DATE: May 21, 2021 ORDER The previously denied claim of entitlement to service connection for hypertension is reopened. The previously denied claim of entitlement to service connection for sleep apnea is reopened. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. A March 2014 rating decision declined to reopen the claims of entitlement to service connection for hypertension and sleep apnea. Later that month, the Veteran was notified of the denial and his appellate rights but did not file a notice of disagreement or submit new and material evidence within the one year appeal period. 2. Since the March 2014 rating decision, new and material evidence has been received regarding the claim of entitlement to service-connection for hypertension. 3. Since the March 2014 rating decision, new and material evidence has been received regarding the claim of entitlement to service-connection for sleep apnea. CONCLUSIONS OF LAW 1. The March 2014 rating decision is final. The criteria to reopen the previously denied claim of entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. The March 2014 rating decision is final. The criteria to reopen the previously denied claim of entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the U.S. Army from January 1968 to April 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). A virtual hearing was held before the undersigned Veterans Law Judge (VLJ) in March 2021. A transcript has not yet been associated with the claims file; however, this decision is being made under the "one touch" program and represents a full grant and/or remand of the benefit sought. Thus, the Veteran is not prejudiced by the Board proceeding with a decision at this time. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). New and Material Evidence In general, decisions of the RO that are not appealed in the prescribed time period are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. 1. The previously denied claim of entitlement to service connection for hypertension is reopened. 2. The previously denied claim of entitlement to service connection for sleep apnea is reopened. In the March 2014 rating decision, the RO declined to reopen previously denied claims of entitlement to service connection for hypertension and sleep apnea because the new and material evidence was not received. The Veteran was notified of the denials and his appellate rights but did not appeal that decision or submit new and material evidence within one year. The March 2014 rating decision is final based on the evidence then of record. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In April 2015 the Veteran submitted a request to reopen these claims. The evidence submitted after the March 2014 rating decision includes treatment records, lay evidence, and testimony during a Board hearing. The Board finds that new and material evidence has been presented. The VA Board hearing testimony and treatment records are new because that evidence was not previously submitted to VA. The evidence is material because when considering the new evidence in conjunction with the evidence already of record, it raises a reasonable possibility of substantiating the claims. Shade, 24 Vet. App. at 117. Accordingly, the Veteran's claims are reopened. REASONS FOR REMAND 1. Entitlement to service connection for hypertension and sleep apnea are remanded. The issues of entitlement to service connection for hypertension and sleep apnea are remanded. VA has not provided examinations for these claims and the Board finds that the duty to assist is triggered. An examination is required where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or symptoms of disability may be associated with the established in-service event, injury, or disease or with another service-connected disability; but (4) insufficient competent medical evidence on which to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79, 85-86 (2006). The Veteran contends his hypertension and sleep apnea are due to active due service. Treatment records show current diagnoses of both disabilities and he has credibly reported symptoms of sleep apnea in service. Service records show elevated blood pressure in service and indicate that he served in the Republic of Vietnam. This is sufficient evidence to establish an event or injury in service. While hypertension is not listed as a presumptive disease under 38 C.F.R. § 3.309(e), the National Academy of Sciences (NAS) has upgraded the relationship between hypertension and herbicide exposure to "sufficient," indicating that there is enough epidemiologic evidence to conclude that there is a possible association between hypertension and herbicide exposure. This is sufficient to satisfy the third McLendon factor. As for sleep apnea, the Veteran credibly testified that his sleep apnea began during and has been present since service. This is sufficient to satisfy the third McLendon factor. Therefore, the Board finds that a remand is necessary to provide examinations. The Veteran also reported recent VA treatment for these disabilities at the hearing but the claims file contains records dated only through April 2018. On remand, current treatment records should be obtained. The matters are REMANDED for the following action: 1. Associate with the claims file all outstanding VA treatment records dated since April 2018. 2. After any additional records are associated with the claims file, obtain an opinion from an appropriate clinician regarding the etiology of the claimed hypertension and sleep apnea disorders from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner The opinion must also address the National Academy of Sciences (NAS) Agent Orange Update report classifying the relationship between hypertension and herbicide exposure to "sufficient," indicating that there is enough epidemiologic evidence to conclude that there is a possible association between hypertension and herbicide exposure. Based on review of the complete claims file and the NAS report, the clinician is asked to respond to the following inquiries: (a) Is it at least as likely as not that the Veteran's hypertension was caused by exposure to herbicide agent? The clinician should be aware that a medical opinion which concludes that a disease is not related to herbicide exposure solely because there is no presumption of service connection (i.e., is not listed in 38 C.F.R. § 3.309) is inadequate. Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009). (b) Is it as least as likely as not that hypertension had its onset during service or within one year of separation from service? Please address evidence of elevated blood pressure in service. (c) Is it at least as likely as not that sleep apnea had its onset during, or is otherwise related to, military service? Please address lay evidence of difficulty sleeping during service. (Continued on the next page) The complete rationale for all opinions and a discussion of the facts and medical principles involved should be provided. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anthony L. Hines 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.