Citation Nr: 23014968 Decision Date: 03/13/23 Archive Date: 03/13/23 DOCKET NO. 19-00 927 DATE: March 13, 2023 ORDER New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for hypertension. New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for heart disease. REMANDED Service connection for a seizure disorder is remanded. Service connection for chronic kidney disease is remanded. Service connection for hypertension is remanded. Service connection for a heart disability is remanded. FINDINGS OF FACT 1. Rating decisions in January 2014 and August 2015 denied service connection for heart disease and hypertension, respectively. The Veteran did not appeal those denials, and the decisions became final. 2. Evidence received since these final rating decisions, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the underlying claims of service connection and raise a reasonable possibility of substantiating those previously denied claims. CONCLUSIONS OF LAW 1. The criteria for reopening the previously denied claim of entitlement to service connection for hypertension have been met. 38 U.S.C. § 5108 ; 38 C.F.R. § 3.156. 2. The criteria for reopening the previously denied claim of entitlement to service connection for heart disease have been met. 38 U.S.C. § 5108 ; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1973 to February 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from May 2017 and June 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). Although evidence was received since the December 2018 and January 2019 statements of the case, the Veteran submitted a waiver of any evidence submitted after the last adjudication. See 38 C.F.R. § 20.1304(c); May 2022 appellate brief. Additionally, 38 U.S.C. § 7105 (e) provides that the Board will initially review any evidence that the Veteran submits with or after the filing of a substantive appeal received on or after February 2, 2013. Therefore, the Board may properly consider such newly received evidence. In his December 2018 and March 2019 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at his local RO. A hearing was scheduled for January 2022; the Veteran withdrew his hearing request in January 2022. 38 C.F.R. § 20.704(e). In April 2022, the Veteran requested an additional 60-day period for the submission of additional evidence. That time period has lapsed. Reopened Claims The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. See 38 U.S.C. § 5108; Knightly v. Brown, 6 Vet. App. 200 (1994). 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 submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Id. at 117. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for hypertension. Service connection for hypertension was denied in an August 2015 rating decision on the basis that a causal nexus was not shown. See August 2015 notification letter. The Veteran did not initiate an appeal of this decision. Although VA treatment records were within the constructive possession of VA, the evidence was not new and material evidence. Thus, the determination became final based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). The Veteran sought to reopen his claim in January 2017. Evidence associated with the file since the August 2015 determination includes the January 2017 VA 21-526EZ indicating that the Veteran's diagnosed hypertension was due to Camp Lejeune. Military personnel records indicate that the Veteran was stationed at Camp Lejeune during a period of time when the presumption of exposure to contaminated water supply applies. See 38 C.F.R. § 3.307 (a)(7). Overall, the Veteran's statement addresses a new theory of entitlement and thus causal nexus. This is a previously unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. For these reasons, reopening of the previously denied claim of service connection for hypertension is warranted. The reopened claim is addressed further in the remand section. 2. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for heart disease. By way of background, the Veteran filed an initial claim for a heart condition due to Agent Orange exposure in July 2011. The claim was denied in a March 2012 rating decision due to a lack of current diagnosis. See March 2012 notification letter. New and material evidence was not received within a year of the March 2012 rating determination and the determination became final based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). In April 2012, the Veteran's requested reconsideration of the prior March 2012 rating decision. Although the denial was affirmed in the June 2012 rating decision, the AOJ determined the claim based on the merits. In doing so, the AOJ found that the Veteran's did not qualify for the presumption of service connection and no nexus was shown. See April 2012 notification letter. New and material evidence was not received within a year of the determination and the determination became final based on the evidence then of record. The Veteran requested reconsideration of the denial in July 2012. Although the AOJ reopened the claim, the January 2014 rating decision confirmed and continued the previous denial for heart disease because the disability was not incurred in or aggravated by military service. The AOJ also found that the Veteran did not have service in Vietnam or exposure to herbicide agents through some other military experience. The Veteran did not initiate an appeal of this decision. New and material evidence was not received within a year of the determination and the determination became final based on the evidence then of record. The Board notes the VA treatment records from the Bath VA Medical Center (VAMC) dated April 2010 to February 2011 were associated with the claims file in June 2016. These records were in VA's constructive possession and are new in that they were not considered in the prior rating decision. Notably, the September 2010 VA treatment records from Bath VAMC showed chest pain and abnormal electrocardiogram, with a rule out assessment of myocardial infarction. However, the information within the records is not material as it is duplicative and redundant of information already of record. See e.g., January 2012 private examination (noting chest pain, abnormal testing results); November 2011 (abnormal stress test); and December 2011 (abnormal ECG). The Veteran sought to reopen his claim in January 2017. Evidence associated with the file since the January 2014 determination includes the January 2017 statement indicating that his heart disease was due to Camp Lejeune. As noted above, the Veteran's personnel records indicate that he was stationed at Camp Lejeune. The Veteran's statement introduces a new theory of entitlement to service, and thus relates to a previously unestablished fact necessary to substantiate the claim. At minimum, it raises a reasonable possibility of substantiating the claim and is material. For these reasons, reopening of the previously denied claim of service connection for heart disease is warranted. The reopened claim is addressed in the remand section. REASONS FOR REMAND 1. Service connection for a seizure disorder is remanded. 2. Service connection for chronic kidney disease is remanded. 3. Service connection for hypertension is remanded. 4. Service connection for heart disease is remanded. In a May 2022 appellate brief, the Veteran's representative asserted that the Veteran had service in the Republic of Vietnam. Initially, the Veteran's claim for Agent Orange exposure centers on his time aboard the USS Denver and his participation in Operation Frequent Wind, which evacuated Americans, foreign nationals, and Vietnamese citizens after the fall of South Vietnam. In a May 2010 statement related to his claim for posttraumatic stress disorder (PTSD), the Veteran reported that his duties included providing security onboard the USS Denver. Personnel records confirm that the Veteran participated in Operation Frequent Wind while a member of BLT 3/9 aboard LPD-0 USS Denver from April 22, 1975, to May 2, 1975. The evidence further indicates that the RO conducted development regarding whether regarding BLT 3/9 and the Veteran had service in the Republic of Vietnam. In December 2013 SF 180, the command chronology indicated that BLT 3/9 arrived on station off Vung Tau, Vietnam aboard Charlie Shipping on April 22, 1975, and remained on station throughout. BLT 3/9 provided support for Operation Frequent Winds and was tasked to develop plans for surface event of Can Tho, Vietnam. On April 29, 1975, the BLT 3/9 was directed to prepare to go into the Air American Compound as backup but was then directed to stand down. In addition, the official source formerly known as the US Army and Joint Services Records Research Center (JSRRC) issued a December 2013 administrative decision with a formal finding of lack of information for claimed Agent Orange exposure. The JSSRC coordinator considered the Veteran's assertion of his role assisting in the evacuation of Saigon. However, the coordinator determined that the information required to corroborate the Agent Orange exposure is unavailable and insufficient to submit to the JSSRC, the Marines Research Center, and/or the National Archives and Records Administration (NARA). Despite the efforts to verify whether the Veteran had service in Republic of Vietnam, it does not appear that attempts were ever made to determine whether Veteran was aboard a ship which operated within 12 nautical miles of the Republic of Vietnam and qualifies for the expanded presumption of service connection available under the Blue Water Act. 38 U.S.C. § 1116A (d). By way of background, the U.S. Court of Appeals for the Federal Circuit held that veterans who "served in the 12 nautical mile territorial sea of the Republic of Vietnam" are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section's other requirements. Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019). It is not apparent that the command chronology included points of latitude and longitude or review of the USS Denver in the logbooks. The USS Denver was stationed off Vung Tau, Vietnam during Operation Frequent Winds. The Veteran indicated that the USS Denver received incoming helicopters involved in the evacuation of Saigon. This evidence places the Veteran's ship within very close proximity to Vietnam, but it is unclear what "stationed off" Vung Tau means and if the ship maneuvered within the 12-mile Vietnam official waters. Thus, additional development is required. Moreover, a VA opinion is required. In McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Veteran has current diagnoses of hypertension, non-obstructive coronary artery disease, chronic kidney disease and seizure disorder. See November 2018 VA treatment records. The Veteran has reported that his heart disability, hypertension, and seizure disorder are due to Camp Lejeune. See January 2017 VA 21-526EZ. As noted above, records confirm that the Veteran had service at Camp Lejeune and the presumption of exposure to contaminated water applies. Thus, the low threshold of McClendon have been met and an opinion is required. In addition, an opinion as to secondary service connection should be obtained. The Veteran reported that he has a history of seizures from alcohol mixed with marijuana in May 2010 VA treatment records. The Veteran is service connected for unspecified depressive disorder, to include dysthymia, claimed as PTSD, and anxiety. See September 2019 rating decision. The June 2016 VA opinion regarding his psychiatric disability noted that depression, anxiety, and substance abuse are frequently interconnected. Given the evidence, an opinion should be obtained as to whether the Veteran's seizure disorder is proximately caused by or aggravated by his service-connected unspecified depressive disorder, to include dysthymia, claimed as PTSD, and anxiety. Finally, there is also some evidence that the Veteran's chronic kidney disease is secondary to his heart disability. Notably, the VA decision review officer indicated that the Veteran claimed his kidney disease is secondary to his heart disability. Because the claims are being remanded for an opinion already, an opinion as to secondary service connection should also be obtained. The matters are REMANDED for the following action: 1. Undertake all necessary actions to determine whether the Veteran served in the Republic of Vietnam, to include within 12 nautical miles of the Republic of Vietnam. Such action may include obtaining and reviewing the deck logs of the USS Denver in order to ascertain whether it operated within 12 nautical miles of the Republic of Vietnam while the Veteran was attached to that ship (April 1975 to May 1975), conducting an inquiry with an official source of records (formerly the JSRRC), and any other development deemed appropriate, to include follow up with NARA. 2. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran's hypertension, non-obstructive coronary artery disease, and seizure disorder. The examiner must review the claims file. a) The examiner is asked to opine whether the Veteran's hypertension, non-obstructive coronary artery disease, or seizure disorder disability is at least as likely as not related to service, including presumed exposure to contaminated water at Camp Lejeune. The examiner is advised that a negative opinion cannot be based solely on the fact that the disability is not on the list of diseases that are presumptively associated with exposure to contaminants in the water supply at Camp Lejeune. b) The examiner is asked to opine whether the Veteran's seizure disorder is proximately due to or aggravated, by service-connected unspecified depressive disorder, to include dysthymia, claimed as PTSD, and anxiety. The examiner should consider the Veteran's lay statements indicating that his seizures were related to substance abuse and his depression was connected to substance abuse. A fully-explained rationale for the requested opinions should be provided. In providing the requested opinion, the examiner should note whether the theory offered by the Veteran regarding the development of his disability align with how the currently diagnosed disability is known to develop or if the Veteran's reports are inconsistent with the medical knowledge or otherwise implausible. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, he or she must explain why this is so. 3. If service connection is granted for a heart disability, obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran's chronic kidney disease. The examiner is asked to opine whether the Veteran's chronic kidney disease is proximately due to or aggravated, by service-connected heart disability. A fully-explained rationale for the requested opinions should be provided. In providing the requested opinion, the examiner should note whether the theory offered by the Veteran regarding the development of his disability align with how the currently diagnosed disability is known to develop or if the Veteran's reports are inconsistent with the medical knowledge or otherwise implausible. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, he or she must explain why this is so. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Vuong, 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.