Citation Nr: 21031463 Decision Date: 05/22/21 Archive Date: 05/22/21 DOCKET NO. 17-18 496 DATE: May 22, 2021 ORDER New and material evidence having been received, reopening of the claim of service connection for hypertension is granted. Entitlement to service connection for hypertension also claimed as a heart disability is granted. Entitlement to service connection for chloracne is granted. FINDINGS OF FACT 1. In a final rating decision dated in October 1977, the Regional Office (RO) denied the Veteran's claim of entitlement to service connection for hypertension. 2. The evidence received since the RO's October 1977 rating decision is not cumulative and redundant of the evidence of record at the time of the last prior final denial raises a reasonable possibility of substantiating the claim. 3. The Veteran's hypertension has reasonably been shown to be etiologically related to his active service. 4. Resolving reasonable doubt in the Veteran's favor, his chloracne is related to exposure to Agent Orange during service. CONCLUSIONS OF LAW 1. New and material evidence has been received since the RO's October 1977 rating decision, which denied the claim of entitlement to service connection for hypertension, and the claim for service connection is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for hypertension, also claimed as a heart disability, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.159, 3.303, 3.307, 3.309. 3. The criteria for service connection for chloracne have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1967 to August 1970. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) RO. In September 2020, the Veteran testified at a Video hearing before the Undersigned Veterans Law Judge. 1. Whether new and material evidence has been received to reopen the claim of service connection for hypertension Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what new and material evidence is, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513. The Board finds additional evidence shows current hypertension also claimed as a heart disability possibly related to active service. Such relates to the open medical question as to whether the Veteran's hypertension/heart disability related to his military service. The evidence is new, material, and serves to reopen the claim. To this extent only, the appeal is granted. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established for a current disability based on a presumption that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. § §§ 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Although a claimant is competent in certain situations to identify a simple condition such as a fall leading to a broken leg, a lay person is generally not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465, 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.§ 5107(b). 2. Entitlement to service connection for hypertension also claimed as a heart disability The Veteran seeks entitlement to service connection for hypertension. Indeed, he asserts that he developed high blood pressure during service, was medically diagnosed with hypertension during service, that he received treatment for his diagnosed hypertension during service, and that his current diagnosis for hypertension is directly related to service. The Veteran's service treatment records (STRs) include an August 1967 enlistment examination that documented a normal heart and vascular system and did not identify high blood pressure or hypertension. The STRs show no diagnosed hypertension. A July 1970 separation examination did not document hypertension. Post-service treatment records include September 1995 treatment records that document diagnosis for essential hypertension. The Veteran's private treating physician at the time indicated that the Veteran has a past medical history of hypertension for the past 25 years (notably within a year of the Veteran's August 1970 service separation). Current post-service treatment records document a lengthy medical history for treatment for essential hypertension. During the September 2020 Board hearing, the Veteran reiterated his assertions that he was treated for hypertension during service or shortly following service separation. After a review of the evidence of record, the Board finds that service connection for hypertension is warranted. Indeed, the evidence reasonably shows diagnosis and treatment for hypertension within 1 year of service separation somewhere between 1970 and 1971. Accordingly, as it is reasonably shown essential hypertension manifested within the first post-service year and affording the Veteran the benefit of the doubt, service connection for hypertension is granted. 3. Entitlement to service connection for chloracne The Veteran contends that his chloracne is related to his exposure to Agent Orange during service in Korea. Indeed, he has consistently reported that he was directed by his superior officers to travel to the Demilitarized Military Zone (DMZ) to deliver necessary cargos. Service personnel records document the Veteran was assigned to the 98th Transportation Company from February 1968 to February 1969. During July 2016 VA examination, the examiner indicated that the Veteran has chloracne since 1968, and that such is presumptive of Agent Orange exposure. In November 2016, the National Archives and Records Administration (NARA) indicated it was unable to locate 1968 unit records submitted by 98th Transportation Company (98th Trans Co). There was no way to verify the use, storage, spraying, or transportation of herbicides to include Agent Orange. In addition, the records did not mention or document any specific duties performed by the 98th Trans Co. unit members such as delivering cargo to the DMZ. The Board observes that although NARA was unable to corroborate the Veteran's travels to the DMZ. The Board finds credible the Veteran's consistent reports that he would, at times, travel to the DMZ to transport parts as it would appear to be consistent with the time, place, and circumstances of his service. Moreover, the Department of Defense (DoD) has identified as operating in the Korean DMZ during the qualifying time period of April 1, 1968 to August 31, 1971, as such, it may reasonably be conceded that he was exposed to Agent Orange while serving in Korea. See 38 C.F.R. § 3.307. During the September 2020 Board hearing, the Veteran testified that he was in a transportation company in Inchon Korea. He reiterated that part of his duties included transporting parts for vehicle bumpers - tires, bumpers, etc. up to the DMZ. Resolving all doubt in the favor of the Veteran, the Board finds that he had a diagnosis of chloracne during the appeal period. Therefore, entitlement to service connection for chloracne is granted due to the Veteran's actual exposure to herbicide agents while serving in Korea during the applicable period. These findings are specific to the unique circumstances of this Veteran's service. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.