Citation Nr: 22014201 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 10-02 708 DATE: March 11, 2022 ORDER New and material evidence has been presented, and the Veteran's claim for entitlement to service connection for hypertension is reopened. Service connection for hypertension is granted. Service connection for diabetes is granted. FINDINGS OF FACT 1. In a June 1998 rating decision, the Veteran was denied service connection for hypertension on the basis that evidence did not reflect an in-service incurrence of the disability. The Veteran was notified of that decision in correspondence issued the same month. He did not appeal the decision, nor was new and material evidence received within one year; therefore, the decision is final. New and material evidence has been received in the form of an August 2012 Administrative Decision (which verified herbicide exposure) sufficient to reopen the Veteran's claim. 2. As noted above, an August 2012 Administrative Decision confirmed the Veteran's service in the Republic in Vietnam and presumed exposure to herbicide agents; the Veteran has a diagnosis of hypertension (See January 2009 VA examination); While hypertension is not recognized as a legally presumptive condition due to herbicide agent exposure, the National Academy of Sciences (NAS) has indicated that there is sufficient evidence of an association between hypertension and herbicide agent exposure. The NAS moved hypertension to the category of "sufficient" evidence of an association from its previous classification in the "limited or suggestive" category. The "sufficient" category indicates that there is enough epidemiologic evidence to conclude that there is a positive association. See Hypertension Upgraded in Latest Biennial Review of Research on Health Problems in Veterans That May Be Linked to Agent Orange Exposure During Vietnam War: Update November 15, 2018. Therefore, after resolving reasonable doubt in the Veteran's favor, the Board finds that his hypertension is related to his in-service herbicide agent exposure; further, the January 2009 VA examiner opined that the Veteran's hypertension was likely aggravated by his diabetes (which he was not service connected for at the time); accordingly, the weight of the evidence is in favor of finding a causal link ("nexus") between the Veteran's hypertension and his military service and now service-connected diabetes (see below). 3. As noted above, an August 2012 Administrative Decision confirmed the Veteran's service in the Republic in Vietnam and presumed exposure to herbicide agents, and therefore, service connection for diabetes is warranted on a presumptive basis. CONCLUSIONS OF LAW 1. New and material evidence has been submitted, and the Veteran's service connection claim for hypertension is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The criteria have been met for service connection for hypertension. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria have been met for service connection for diabetes. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1963 to December 1982. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In the Veteran's January 2010 substantive appeal (VA Form 9), the Veteran requested a Board hearing. However, in December 2021 correspondence, the Veteran formally requested to withdraw his hearing request with the Board. Accordingly, the Board finds the Veteran's hearing request withdrawn. See 38 C.F.R. § 20.704. In the December 2009 statement of the case, the AOJ included within the Veteran's denied claim for service connection for diabetes, secondary claims for service connection for a heart condition (subsequently granted by the AOJ) and vision impairment. Based on review of the record, the issue of vision impairment appears to have not been separately adjudicated or developed. In the Veteran's January 2010 substantive appeal (VA Form 9) and January 2010 correspondence, the Veteran clarified that he still wishes to appeal this issue as service connection for diabetic retinopathy secondary to diabetes. Accordingly, the Board refers to the AOJ the claim for diabetic retinopathy secondary to diabetes for any necessary further development and the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The Board finds the issue of diabetes was included in the Veteran's January 2010 substantive appeal (VA Form 9), but never certified to the Board for adjudication of the appeal; however, the Veteran perfected his appeal and it is appropriate for the Board to render a decision on the claim. Reopening Claim Prior to February 19, 2019, a veteran must have filed a notice of disagreement (NOD) with a determination by the Agency of Original Jurisdiction (AOJ) within one year from the date that the AOJ mails notice of the determination to him or her. Otherwise, that determination will become final. 38 C.F.R. § 19.52. However, if new and material evidence was received prior to the expiration of the appeal period, then the evidence will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 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(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, 38 C.F.R. § 3.156(a) creates a low threshold, and the phrase "raises a reasonable possibility of substantiating the claim" enables, rather than precludes, reopening. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the reasons outlined in more detail above in the Findings of Fact section, the service connection claim for hypertension is reopened. Service Connection For the reasons outlined in more detail above in the Findings of Fact section, the criteria for service connection for hypertension and diabetes have been met, and the claims are granted. Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Williams, 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.