Citation Nr: 22051132 Decision Date: 09/08/22 Archive Date: 09/08/22 DOCKET NO. 18-32 980 DATE: September 8, 2022 ISSUES Entitlement to an evaluation in excess of 10 percent for service-connected right knee osteoarthritis. Whether new and material evidence sufficient to reopen the claim for entitlement to service connection for hypertension, secondary to service-connected chronic obstructive pulmonary disease (COPD) has been received, and if so, should the claim be granted. Entitlement to service connection for hypertension to include as secondary to service-connected chronic obstructive pulmonary disease. ORDER Entitlement to an evaluation in excess of 10 percent for service-connected right knee osteoarthritis has been withdrawn. New and material evidence sufficient to reopen the claim for entitlement to service connection for hypertension secondary to service-connected chronic obstructive pulmonary disease has been received, and so to that extent only, the claim is granted. REMANDED Entitlement to service connection for hypertension to include as secondary to service-connected chronic obstructive pulmonary disease is remanded. FINDINGS OF FACT 1. In the March 2022 Board Hearing, as well as prior to the promulgation of a decision in the appeal, the Veteran withdrew his Substantive Appeal with respect to the issue of entitlement to an increased evaluation for service-connected right knee osteoarthritis. 2. A September 2013 rating decision denied a claim for service connection for hypertension. The Veteran was notified of his rights but did not file a timely notice of disagreement (NOD) or submit new and material evidence within the one-year appeal period. 3. Evidence received since the September 2013 rating decision is not cumulative and redundant of the evidence previously of record and raises a reasonable possibility of substantiating the Veteran's claim of service connection for hypertension. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim of entitlement to an increased evaluation for service-connected right knee osteoarthritis by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The September 2013 rating decision which denied service connection for hypertension is final. 38 U.S.C. § §7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. New and material evidence sufficient to reopen the claim of service connection for hypertension has been received, and the claim is reopened. 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 in the United States Army from September 1978 to October 1996. The Veteran is in receipt of the Kuwait Liberation Medal for his active-duty service in the Southwest Asia theater of operations in the Persian Gulf during his deployment from October 1990 to April 1991. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In March 2022, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the testimony has been associated with the record. At such time, the undersigned held the record open for 60 days for the receipt of additional evidence. Neither the Veteran nor his representative has submitted additional evidence. For the reasons discussed below, the claim for entitlement to service connection for hypertension must be remanded for evidentiary development. 1. Entitlement to an evaluation in excess of 10 percent for service-connected right knee osteoarthritis. At the outset, the Board notes that the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In the March 2022 Video Conference Board Hearing, as well as prior to the promulgation of a decision in the appeal, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew his Substantive Appeal with respect to the issue of entitlement to an increased evaluation for service-connected right knee osteoarthritis. The undersigned clearly identified the withdrawn issue, and the Veteran affirmed that he was requesting a withdrawal as to that appeal. Accordingly, the Board does not have jurisdiction to review the appeal with respect to the claim for an increased evaluation for service-connected right knee osteoarthritis, and it is dismissed. 2. Whether new and material evidence sufficient to reopen the claim for entitlement to service connection for hypertension to include as secondary to service-connected chronic obstructive pulmonary disease. Petition to Reopen In September 2013, VA denied the Veteran's original claim of entitlement for service connection for hypertension. The RO denied the claim on the basis that the evidence of record did not show that the Veteran's hypertension occurred in, nor was caused by service. The Veteran did not file a timely notice of disagreement (NOD) or submit new and material evidence within the one-year appeal period following the September 2013 rating decision. He also did not assert there was clear and unmistakable error in the rating decision. Therefore, the September 2013 decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In September 2015, the Veteran filed a claim for entitlement to service connection for hypertension, claiming that this condition was secondary to his service-connected COPD. While the RO didn't address the issue of whether new and material evidence had been received to reopen the previously denied claim, the RO denied the claim in a March 2016 rating decision, finding that the evidence did not show that hypertension was related to his COPD nor was there any evidence of the disability during military service. The Veteran filed a NOD in September 2016. VA issued a statement of the case (SOC) in May 2018 and a supplemental statement of the case (SSOC) in April 2019. The appeal was certified before the Board in May 2019. The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is irrelevant. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Thus, the Board will adjudicate this new and material issue in the first instance. New evidence is defined as existing evidence not previously submitted to VA since the last final denial, and material evidence is defined as 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. 38C.F.R. §3.156(a) (2020). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last, final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). The Board considers the last, final denials to be the September 2013 rating decision. 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. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). Claims Reopened The evidence of record in September 2013 consisted of service records, including personnel and medical records, and VA treatment records. The evidence of record at that time did not establish a nexus back to service for the Veteran's hypertension. Since the September 2013 rating decision, the Veteran's file has additional VA treatment records, a February 2016 VA hypertension examination, medical treatise evidence submitted as well as lay statements from the Veteran have been attached to the claims file. Also, the Veteran provided testimonial evidence during his March 2022 Board hearing with the undersigned Veterans Law Judge. The Veteran testified that it was his belief that his hypertension was related to his service-connected COPD. While a new theory of entitlement cannot be the basis to reopen a claim under 38 U.S.C. § 7104 (b), if the evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). Here, this new evidence is not cumulative or redundant of the evidence previously of record. The Board is reminded in this regard that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade. And further, that consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. This newly received evidence basically provides a more complete picture as to the nature of the Veteran's hypertension disability in question, and under the low threshold standard could reasonably trigger the Secretary's duty to assist. Id. at 118. Therefore, assuming its credibility for the purpose of the threshold question of whether the claim can be reopened, the newly received evidence raises a reasonable possibility of substantiating the Veteran's claims of service connection for hypertension. As new and material evidence has been received, reopening of the previously denied claims of entitlement to service connection for hypertension is warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. To that extent only, the claim to reopen for service connection for hypertension is granted. REASONS FOR REMAND Entitlement to service connection for hypertension to include as secondary to service-connected chronic obstructive pulmonary disease is remanded. The Veteran contends that his hypertension is related to his active-duty service, to include as secondary to his service-connected COPD. The Veteran has been previously service-connected for COPD. In his September 2016 NOD, the Veteran contends that there is a direct correlation between his deployment to the Persian Gulf and an immediate decline in his endurance performance and a continued decline in his health. As noted above, the Board recognizes that the Veteran had active military service in the Southwest Asia theater of operations during the Persian Gulf War. Initially, the Board recognizes that the Veteran's service treatment records contain a March 1996 treatment note which shows a blood pressure reading of 130/90. Additionally, at the Veteran's May 1996 separation examination the Veteran's blood pressure was recorded as 134/90. The Veteran's service treatment records are silent for complaints of, treatment for, or a diagnosis of hypertension during service. The Veteran was afforded a VA examination for his hypertension in February 2016. During this examination the examiner diagnosed hypertension, with a diagnosis date in 2004. The examiner listed 1996 as the date of onset, and in addressing the medical history, the examiner noted that the Veteran's blood pressure was noted to be elevated in 1996, though he did not begin to take medication until 2004. The examiner then provided a negative nexus opinion for service connection, opining that although it was known that COPD can cause pulmonary hypertension, it was less likely than not that the Veteran's COPD caused his systemic hypertension. The examiner explained that there was a lack of pathophysiological basis linking COPD and systemic hypertension. Upon review of the evidence of record, the Board finds that the February 2016 medical opinion is inadequate for adjudication purposes for the following reasons. First, with respect to secondary service connection, such is warranted for disabilities that are proximately due to a service-connected disability and for disabilities that are aggravated by a service-connected disability. See 38 C.F.R. § 3.310. The provided opinion did not address the concept of aggravation, but rather addressed on whether there was a causal connection between the Veteran's service-connected COPD and his hypertension. Therefore, an addendum opinion is required to adequately address secondary service-connection. Next, while the February 2016 medical opinion focuses on secondary service connection the examiner failed to address the issue of direct service connection. To this, the Board recognizes that the examiner noted that the Veteran had elevated blood pressure readings in 1996, while the still on active duty. Additionally, as noted above, in his September 2016 NOD, the Veteran contended that he began to experience an immediate decline in his health following his deployment in the Persian Gulf. The Veteran's contention that there is a connection between his Gulf War service and his hypertension, as well as his recorded elevated blood pressure readings while still on active duty, raises a medical question that the Board is not competent to address, and which was not addressed by the provided VA opinion. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). As such, a new VA opinion is required addressing direct service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Also, in September 2016 the Veteran submitted medical articles which discussed the relationship between COPD and several other health conditions, including hypertension. Additionally, during the March 2022 hearing the Veteran testified that prior to his deployment he did not have issues with his physical fitness, but upon return he began to experience problems with his breathing, which were related to his COPD. He testified that he did not have hypertension until after his breathing issues started, and therefore he believed that these two disabilities were connected. The February 2016 examiner did not have this evidence for consideration when rendering the negative etiological opinion. Once VA undertakes the effort to provide an examination when developing a claim, the exam must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). And VA must consider all lay and medical evidence of record. 38U.S.C. §1154 (a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. Accordingly, the Board finds a remand is necessary to obtain and addendum medical opinion on the etiology of the Veteran's claimed hypertension disability. The matters are REMANDED for the following action: 1. Obtain any outstanding and relevant private and/or VA treatment records. Should such exist, associate such with the claims file. 2. Thereafter, obtain a VA medical opinion with respect to the Veteran's hypertension claim. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. If the examiner determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. The examiner is requested to address the following: a) Whether it is approximately at least as likely as not that the Veteran's hypertension disability had its onset during active service or is related to any in-service injury, event, or disease, including his elevated in-service blood pressure readings or his verified Persian Gulf service. b) Whether it is approximately as least as likely as not that the Veteran's hypertension has been caused OR aggravated (i.e., increased in severity) by his service-connected COPD. In addressing this question, the examiner is asked to specifically address the medical treatise evidence submitted by the Veteran in September 2016. The examiner must also remain mindful that a recent precedent case clarified that secondary service connection does not require "permanent" worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition's natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). c) If aggravation is found, the examiner should address the following medical issues to the extent possible: (1) the baseline manifestations of the Veteran's hypertension found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately caused by the service-connected COPD. (Continued on next page.) After completing the requested actions, readjudicate the claim in light of all pertinent evidence and legal authority. If the benefit sought remains denied, furnish to the Veteran and his representative with a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, 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.