Citation Nr: 21040951 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-56 685 DATE: July 7, 2021 ORDER The petition to reopen a previously denied claim for service connection for hypertension is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to an initial rating higher than 10 percent for a right knee synovitis is remanded. Entitlement to an initial rating higher than 10 percent for a left knee disability is remanded. FINDINGS OF FACT 1. In an unappealed July 2010 rating decision, the RO denied the Veteran's claim for hypertension. 2. The evidence received since the July 2010 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for hypertension. CONCLUSIONS OF LAW 1. The July 2010 rating decision denying a claim for hypertension is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.105(a), 20.302, 20.1103 (2020). 2. The additional evidence received since the July 2010 rating decision is new and material, and the claim of service connection for hypertension is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1964 to July 1966. In June 2021, the Veteran and his son testified in a virtual Board hearing before the undersigned Veterans Law Judge. NEW AND MATERIAL EVIDENCE Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a Notice of Disagreement (NOD) with the decision or submitting new and material evidence, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302. An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). Here, in a July 2010 rating decision, the RO denied entitlement to service connection for hypertension finding that the diagnosis shown was not a confirmed diagnosis and that it was not noted during a period of active duty. Evidence considered at a time included the Veteran's service treatment records and private medical records. The Veteran failed to appeal this decision within the allotted time period and new and material evidence was not received within a year of the decision. Thus, the July 2010 rating decision became final. Relevant evidence received since the final denial of the claim in July 2010 included medical evidence that confirmed a diagnosis of hypertension and the Veteran's testimony that he believed he had elevated blood pressure readings during service and pointed to his blood pressure reading shown at separation. This evidence is new and material and the petition to reopen the claim for hypertension is granted. REASONS FOR REMAND A remand is necessary to provide the Veteran with a VA examination to help determine the likely etiology of the currently diagnosed hypertension, which he believes had its initial onset during service based on an elevated blood pressure reading(s). During the Board hearing, the Veteran also testified as to worsening knee symptoms and as such, a new examination is needed to help determine the current severity of the right and left knee disabilities. The matters are REMANDED for the following action: 1. Ensure all outstanding VA treatment records are associated with the claims file. 2. Then, Provide the Veteran with an appropriate VA examination to help determine the likely etiology of the hypertension. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. After a review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran any and signs and symptoms associated with his hypertension during service and since separation from service. (b) Provide an opinion as to whether it is at least as likely as not (a 50 percent or higher probability) that the Veteran's hypertension had its onset during service based on elevated blood pressure readings, or diagnosed within the first year post-service, or is otherwise related to it. **In doing so, please address the Veteran's (i) lay reports that his blood pressure readings in service were indicative of pre-hypertension, (ii) a 138/78 blood pressure reading at the time of separation from service, (iii) on VA Form-9, he indicated he was under doctor's care since service and obtained medication from Mexico; and (iv) 2008 medical records noting at least a 15-year history of hypertension. A complete rationale should be provided for all opinions. 3. Provide the Veteran with a VA examination to help identify the current severity of the right and left knee disabilities. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of the right and left knee disabilities throughout the pendency of the appeal from April/September 2017, forward. In doing so, obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. (b) Full range of motion testing must be performed where possible. The joint in question and the paired joint should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. If pain is found during the examination, the examiner should note when the pain begins. (c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. (Continued on the next page) **If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. 4. Thereafter, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.