Citation Nr: 21042160 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-61 092 DATE: July 12, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for hypertension is reopened. REMANDED Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. A September 2013 rating decision denied the Veteran's claim for service connection for hypertension. The Veteran did not perfect an appeal or submit new and material evidence within the appeal period and that decision is final. 2. Some of evidence added to the record since the September 2013 final denial, when considered with previous evidence, relates to an unestablished fact necessary to substantiate the claim and/or raises a reasonable possibility of substantiating the Veteran's claim for service connection for hypertension. CONCLUSION OF LAW The criteria for reopening the claim for service connection for hypertension have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) from a May 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board notes that in March 2019, the RO issued a rating decision granting service connection for erectile dysfunction, effectively resolving the appeal of this issue. See Grantham v. Brown, 114 F.3d 1136 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). 1. New and material evidence having been received, the claim of entitlement to service connection for hypertension is reopened Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. 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. 38 C.F.R. § 3.156(a). 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. Id. The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran's claim for service connection for hypertension was initially denied in a February 2010 rating decision. In March 2012, the Veteran submitted a request to reopen the claim, which the RO denied in a September 2013 rating decision. The Veteran did not perfect an appeal or submit new and material evidence during the appeal period, and the decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2018); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). In October 2016, the Veteran submitted a request to reopen the claim, and in rating decisions dated February 2017 and May 2017, the RO denied reopening because the evidence submitted did not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. Thereafter, the RO granted the request to reopen the claim in an October 2017 statement of the case. Regardless of the RO's actions, the Board has a jurisdictional responsibility to consider whether it is proper for that claim to be reopened before addressing the merits of the claim. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Upon review of the record, the Board finds that the evidence received since the last final rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. In this regard, evidence since the last final denial includes updated VA treatment records and VA examinations, as well as testimony from the March 2021 Board hearing, wherein the Veteran testified that he has had high blood pressure since he was on active duty. Such evidence is presumed credible solely for new and material evidence analysis. Justus v. Principi, 3 Vet. App. 510, 513 (1992) (For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed.) As the new evidence contributes to a more complete picture surrounding the origins of his claimed hypertension, the claim is reopened. REASONS FOR REMAND 2. Entitlement to service connection for hypertension Reopening the claim does not end the inquiry; consideration on the merits is required. However, the Board finds that additional development is needed. The Veteran seeks service connection for hypertension, which he asserts was caused by exposure to herbicide agents during service or caused or aggravated by his service-connected diabetes mellitus. Additionally, during his March 2021 Board hearing, the Veteran alleged that he has had high blood pressure since he was on active duty. However, service treatment records do not show complaints, treatment, or a diagnosis of hypertension during service and the Veteran's blood pressure was 110/80 and 136/68 on his March 1970 separation examination. The Board finds that an examination with medical opinion is needed to adequately address the claim on the merits. Updated treatment records should also be requested. The matter is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. After records development is completed, the Veteran should be afforded a VA examination to obtain an opinion on the claim for service connection for hypertension. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted and the results reported. After review of the claims file and examination of the Veteran, the examiner should respond to the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that hypertension arose during service or is otherwise related to service, to include herbicide agent exposure. The examiner should explain why or why not, with consideration of the fact that the National Academies of Science, Engineering and Medicine (NAS) previously determined there was "limited/suggestive evidence of a relationship" between hypertension and herbicide exposure, but recently changed it to "sufficient" evidence of a relationship. b. If not related to service, is it at least as likely as not (50 percent probability or greater) that the hypertension was caused by the service-connected diabetes mellitus? The examiner should explain why or why not. c. If not caused by the service-connected diabetes mellitus , is it at least as likely as not that the Veteran's hypertension is worsened beyond natural progression (aggravated) by his service-connected diabetes mellitus? The examiner should explain why or why not. If the examiner finds that the Veteran's hypertension was aggravated by his service-connected diabetes mellitus, the examiner should attempt to quantify the level of aggravation beyond the baseline level of the hypertension. 3. If the claim remains denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lance, 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.