Citation Nr: 21042462 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-46 764A DATE: July 13, 2021 ORDER New and material evidence having been received, the application to reopen the claim for service connection for hypertension, secondary to diabetes mellitus, type II is granted. REMANDED Entitlement to service connection for hypertension, claimed as due to exposure to herbicide agents, and/or secondary to service-connected diabetes mellitus, type II, is remanded. FINDINGS OF FACT 1. In a final decision issued in August 2006, the Agency of Original Jurisdiction (AOJ) denied service connection for hypertension, secondary to diabetes mellitus, type II. 2. Evidence added to the record since the final August 2006 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for hypertension, secondary to diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The August 2006 rating decision that denied service connection for hypertension, secondary to diabetes mellitus, type II, is final. 38 U.S.C. § 7105 (c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2004) [(2019)]. 2. New and material evidence has been received to reopen a claim of entitlement to service connection for hypertension, secondary to diabetes mellitus, type II. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to November 1971, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. The Board notes additional evidence consisting of VA treatment records and VA examinations have been associated with the record subsequent to the most recent adjudication of the Veteran's claims in the November 2020 supplemental statement of the case. However, as such evidence is irrelevant to the issues on appeal, there is no prejudice to the Veteran in proceeding with the adjudication of his claims at the present time. 38 C.F.R. § 20.1305(c). Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for hypertension, secondary to diabetes mellitus, type II. By way of background, VA received the Veteran's original claim for service connection for hypertension, secondary to diabetes mellitus, type II in February 2006. In an August 2006 rating decision, the AOJ considered the Veteran's service treatment records (STRs), a July 2006 VA examination, and private treatment records dated from May 1992 to January 2006. In this regard, it was noted that as the Veteran was not service connected for diabetes mellitus, type II, and thus, service connection on a secondary basis could not be established. Further, it was noted that his service treatment records were negative for complaints, treatment, or a diagnosis referable to hypertension. Consequently, as the Veteran was not service connected for diabetes mellitus, type II, and his hypertension was not shown to have been incurred in or caused by his military service, and did not manifest to a compensable degree within one year of his discharge from active duty, the AOJ denied service connection for such disorder. Later that month, the Veteran was advised of the decision and of his appellate rights, but he did not appeal to the United States Court of Appeals for Veterans Claims (Court), filed a motion for reconsideration, or filed a motion for revision or reversal based on clear and unmistakable error. Furthermore, no relevant service department records have since been received. Consequently, the August 2006 rating decision is final. 38 U.S.C. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2005). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ 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 which 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). 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. Shade v. Shinseki, 24 Vet. App. 110 (2010). 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 (1992). Following the issuance of the August 2006 decision, additional evidence consisting of additional VA treatment records, a September 2013 buddy statement, and private treatment records, was added to the record. Notably, in a March 2020 rating decision, the AOJ granted service connection for diabetes mellitus, type II. As noted previously, the Veteran's claim for service connection for hypertension was previously denied on the basis that he was not service connected for diabetes mellitus, type II, and the evidence did not show that such was related to his military service. Consequently, the Board finds that, as the evidence added to the record since the final August 2006 denial, raises new theories of entitlement, it is not cumulative or redundant of the evidence of record at the time of the decision and raises reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for hypertension. Therefore, new and material evidence has been received, and the Veteran's claim of entitlement to service connection for hypertension is reopened. REASONS FOR REMAND Entitlement to service connection for hypertension, claimed as due to exposure to herbicide agents and/or secondary to service-connected diabetes mellitus, type II. The Veteran asserts his hypertension is related to his acknowledged in-service exposure to herbicide agents or, in the alternative, is caused or aggravated by his service-connected diabetes mellitus, type II. The Veteran was afforded a VA examination in November 2020 to determine the etiology of his currently diagnosed hypertension. After a review of the record and physical examination, the examiner opined that the Veteran's hypertension, originally diagnosed in September 1992, is less likely than not proximately due to, or the result of, the Veteran's service-connected diabetes mellitus, type II. In support thereof, the examiner stated there was no renal involvement or diabetic nephropathy [the deterioration of kidney function] present, and hypertension due to diabetes must have nephropathy prior to the onset of hypertension. Thus, there is no nexus. Further, the examiner stated that there was insufficient medical evidence to support a determination of baseline severity of the Veteran's hypertension, and therefore it is less likely than not such disorder is aggravated beyond its natural progression by the Veteran's diabetes mellitus, type II. As the Veteran has other risk factors such as age and body habitus, the examiner determined it would be mere speculation to say the Veteran's service-connected diabetes mellitus, type II aggravated his hypertension beyond its natural progression. The Board finds this opinion inadequate to decide the claim. In this regard, the VA examiner did not discuss whether the Veteran's hypertension is related to his acknowledged herbicide exposure during his service aboard the USS Wallace L. Lind in the waterways of the Republic of Vietnam. In this regard, while hypertension is not a disease for which service connection is provided on a presumptive basis when exposure to herbicide agents is acknowledged, the National Academy of Sciences (NAS) Institute of Medicine (IOM) has concluded there is "sufficient" evidence of an association to exposure to Agent Orange. Update 11 (2018). According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. Further, in his May 2021 Appellate Brief, the Veteran's representative contends the November 2020 VA examiner did not examine all possible factors for developing hypertension secondary to diabetic mellitus, type II. In support of such position, the representative referenced a medical treatise, "Type 2 Diabetes and Hypertension: An Update," which notes that hypertension is present in more than 50 percent of patients with diabetes mellitus. Further, contrary to the November 2020 VA examiner's opinion that diabetic nephropathy must be present before the onset of hypertension, the article states that high blood pressure is a strong independent risk factor for cardiovascular disease and chronic kidney disease, and thus, diabetic nephropathy may not necessarily precede hypertension. Consequently, the Board finds a remand is warranted for an addendum opinion to address such matters. The matters are REMANDED for the following action: Forward the record, to include a copy of this Remand, to an appropriate VA clinician other than the examiner who provided the November 2020 opinion, if possible, to obtain an addendum opinion regarding the etiology of the Veteran's hypertension. Following a review of the record, the examiner should address the following inquiries: (A) Is it at least as likely as not (i.e. a probability of 50 percent or greater) that the Veteran's hypertension is related to his acknowledged in-service exposure to herbicide agents. In offering such opinion, the examiner should consider NAS IOM's Veterans and Agent Orange: Update 11 (2018) that upgraded hypertension from its previous classification in the category of "limited or suggestive" evidence of an association with exposure to Agent Orange to the category of "sufficient" evidence of an association; and the medical treatise cited by the Veteran's representative in the May 2021 Appellate Brief for the proposition that diabetic nephropathy may not necessarily precede hypertension. (Continued on the next page) (B) If the examiner provides a negative response to (A), is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's hypertension is caused or aggravated by his diabetes mellitus, type II? For any aggravation found, the clinician should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. A rationale for any opinion offered should be provided. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M. Kelly, 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.