Citation Nr: 18123953
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 15-02 104A
DATE:	August 3, 2018
ORDER
New and material evidence having been received, the petition to reopen a claim of entitlement to service connection for hypertension is granted.
New and material evidence having been received, the petition to reopen a claim of entitlement to service connection for diabetes mellitus, type II is granted.
REMANDED
Entitlement to service connection for a hypertension is remanded.
Entitlement to service connection for diabetes mellitus, type II, is remanded.
Entitlement to service connection for congestive heart failure is remanded.
Entitlement to service connection for right eye disability, to include a stroke, is remanded.
Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded.
FINDINGS OF FACT
1. In an August 2006 rating decision, the RO denied service connection for hypertension and diabetes mellitus, on the basis that service treatment records showed no evidence of hypertension or diabetes mellitus, and that the conditions could not be established on a presumptive basis.  The Veteran did not file a notice of disagreement; therefore, the decision became final.
2. Evidence received since the August 2006 rating decision raises a reasonable possibility of substantiating the underlying claims of service connection for hypertension and diabetes mellitus.
CONCLUSIONS OF LAW
1. New and material evidence has been received to reopen a claim of entitlement to service connection for hypertension.  38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. § 3.156 (2017).
2. New and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus, type II.  38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. § 3.156 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from July 1974 to August 1982.  He died in May 2018.  The Appellant is his surviving spouse. 
This matter comes before the Board of Veterans’ Appeals (Board) from a March 2013 rating decision, which reopened a claim of entitlement to service connection for diabetes mellitus, type II, but continued to deny the claim on the merits; denied reopening a claim of entitlement to service connection for hypertension on the basis that the evidence submitted was not new and material; denied service connection for congestive heart failure and a right eye disability, to include stroke; and denied entitlement to individual unemployability.  
Despite the RO’s action, the Board must perform its own de novo review of whether new and material evidence has been received to reopen the claims of entitlement to service connection for hypertension and diabetes mellitus, type II, before addressing the claims on their merits.  See 38 U.S.C. § 7104 (2012); see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).
In March 2018, the Veteran testified at a videoconference hearing before the undersigned Veteran’s Law Judge (VLJ).  A copy of the transcript is of record.
Claims to Reopen
Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal.  38 C.F.R. § 20.200.  Rating actions from which an appeal is not timely perfected become final.  38 U.S.C. § 7105; 38 C.F.R. § 20.1103.  A final decision cannot be reopened unless new and material evidence is presented.  38 U.S.C. § 5108.
In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.  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).  In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial.  Evans v. Brown, 9 Vet. App 273, 283 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).  The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase “raises a reasonable possibility of substantiating the claim” enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).
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 (1996).  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).
Whether new and material evidence has been received to reopen claims of entitlement to service connection for hypertension and diabetes mellitus.
In an August 2006 rating decision, the RO denied service connection for hypertension and diabetes mellitus, on the basis that service treatment records did not show evidence of hypertension or diabetes mellitus and there was no evidence to establish service connection for either condition on a presumptive basis.  The Veteran was notified of the decision in an August 2006 letter, but did not file a notice of disagreement; therefore, the decision became final. 
In April 2012, the Veteran attempted to reopen his claims of service connection for hypertension and diabetes mellitus.
Since the August 2006 rating decision, evidence added to the claims file includes VA treatment records, private medical records, a buddy statement, and hearing testimony. 
The Veteran’s physician, in a letter dated in February 2011, indicated that the Veteran had been diagnosed with hypertension and diabetes in 1983.  In a November 2012 buddy statement, the Veteran’s brother, also a physician, recounted a conversation he had with the Veteran’s physician in 1981 concerning the Veteran’s high fasting blood sugar levels and glucose tolerance tests, which indicated that the Veteran was diabetic, and that the Veteran was to be treated with diet, weight control, and exercise.  The Veteran’s brother also stated that the Veteran’s hypertension was discussed, and was being treated with a medicine called Coreg.   
In March 2018, the Veteran testified that while in service, his family doctor told him his glucose was high, indicating diabetes, and that this finding was discussed with his brother.  The Veteran also testified that he had high blood pressure readings in service that continued intermittently after separation from service. 
Here, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156(a) has been received since the last, final August 2006 rating decision. 
The new evidence submitted since the RO’s August 2006 rating decision, establishes current diagnoses and suggests a possible link to service.  This evidence relates to unestablished facts necessary to substantiate the claims.  Therefore, new and material evidence has been received since the RO’s August 2006 decision, and reopening the claims of entitlement to service connection for hypertension and diabetes mellitus is warranted.  The Veteran’s appeal is granted only to this extent.
 

REASONS FOR REMAND
A November 2012 Social Security Administration letter indicates that the Veteran applied for Social Security benefits.  Social Security Administration records have not been associated with the Veteran’s claims file.  Therefore, upon remand, outstanding and relevant Social Security Administration records should be obtained.
1. Entitlement to service connection for hypertension is remanded.
The Board cannot make a fully-informed decision on the issue of entitlement to service connection for hypertension because there is insufficient evidence on file that addresses the matter of etiology.  On remand, an opinion is needed on whether the Veteran’s hypertension is related to his in-service November 1981 EKG finding of minor, non-specific ST-T wave changes or an August 1982 finding of elevated cholesterol, or as secondary to pending service connection claims being remanded herein.
2. Entitlement to service connection for diabetes mellitus, type II, is remanded.
The Board cannot make a fully-informed decision on the issue of entitlement to service connection for diabetes mellitus because there is insufficient evidence on file that addresses etiology.  On remand, an opinion is needed that addresses whether the Veteran’s diabetes mellitus is related to service, to include an in-service August 1982 finding of elevated cholesterol, or secondary to pending service connection claims being remanded herein. 

3. Entitlement to service connection for congestive heart failure is remanded.
The Board cannot make a fully-informed decision on the issue of entitlement to service connection for congestive heart failure because there is insufficient evidence on file.  An opinion is needed as to whether the Veteran’s congestive heart failure is related to his in-service November 1981 EKG finding of minor, non-specific ST-T wave changes or an August 1982 finding of elevated cholesterol, or secondary to pending service connection claims being remanded herein.
4. Entitlement to service connection for a right eye disability, to include a stroke, is remanded.
Because a decision on the remanded issues of entitlement to service connection for congestive heart failure, hypertension, and diabetes mellitus could significantly impact a decision on the issue of entitlement to service connection for a right eye disability, to include a stroke, the issues are inextricably intertwined.  A remand of the claim of entitlement to service connection for a right eye disability is required.
5. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded.
Finally, because a decision on the remanded issues of entitlement to service connection for hypertension, diabetes mellitus, congestive heart failure, and a right eye disability, to include a stroke, could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined.  A remand of the claim for TDIU is required.
The matters are REMANDED for the following actions:
1. Obtain the Veteran’s federal records from the Social Security Administration.  Document all requests for information as well as all responses in the claims file.
2. Obtain an opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s diagnosed hypertension. 
The examiner must opine whether it is at least as likely as not that the Veteran’s hypertension is related to an in-service injury, event, or disease, including an in-service November 1981 EKG finding of minor, non-specific ST-T wave changes or an August 1982 finding of elevated cholesterol.  The examiner is asked to comment on the lay statements of the Veteran and his brother concerning onset of hypertension, as well as a letter from the Veteran’s physician indicating a diagnosis of hypertension in 1983. 
If the examiner finds that the Veteran’s hypertension is not related to service, the examiner must opine whether the Veteran’s hypertension is secondary to his diagnosed congestive heart failure or diabetes mellitus, type II.
3. Obtain an opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s diagnosed diabetes mellitus, type II.
The examiner must opine whether it is at least as likely as not that the Veteran’s diabetes mellitus, type II is related to an in-service injury, event, or disease, including an in-service August 1982 finding of elevated cholesterol.  The examiner is asked to comment on the lay statements of the Veteran and his brother concerning onset of diabetes mellitus, as well as a letter from the Veteran’s physician indicating a diagnosis of diabetes in 1983.
4. Obtain an opinion from an appropriate clinician to determine the nature and etiology of any diagnosed heart condition, to include congestive heart failure.
The examiner must opine whether it is at least as likely as not that the Veteran’s congestive heart failure is related to an in-service injury, event, or disease, including an in-service November 1981 EKG finding of minor, non-specific ST-T wave changes or an August 1982 finding of elevated cholesterol.  
If the examiner finds that the Veteran’s congestive heart failure is not related to service, the examiner must opine whether the Veteran’s congestive heart failure is caused or aggravated by his diagnosed hypertension or diabetes mellitus, type II.
5. If the Veteran is service-connected for congestive heart failure, hypertension, or diabetes mellitus, type II, then obtain an opinion from an appropriate clinician to determine the nature and etiology of any diagnosed right eye disability, to include a stroke.  
The examiner must opine whether it is at least as likely as not that the Veteran’s right eye disability, to include a stroke, is caused or aggravated by his diagnosed congestive heart failure, hypertension, or diabetes mellitus, type II.
6. After completing the above, and any other development as may be indicated, the Veteran’s claims should be readjudicated based on the entirety of the evidence.  If the claims remain denied, the Appellant and her representative should be issued a supplemental statement of the case (SSOC).  An appropriate period of time should be allowed for response.  Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.

 
K. PARAKKAL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Owen, Associate Counsel 

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