Citation Nr: 1007131	
Decision Date: 02/26/10    Archive Date: 03/05/10

DOCKET NO.  06-16 828	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, 
Illinois


THE ISSUE

Whether new and material evidence has been received to reopen 
a claim for entitlement to service connection for 
hypertension.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

C. M. Powell, Counsel

INTRODUCTION

The Veteran had active service from October 1973 to October 
1977.

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from a May 2005 rating decision of Chicago, 
Illinois Regional Office (RO) of the Department of Veterans 
Affairs (VA) that reopened a previously denied claim for 
entitlement to service connection for hypertension.  However, 
the United States Court of Appeals for Veterans Claims 
(Court) has made it clear that even if an RO makes an initial 
determination to reopen a claim, the Board must still review 
the RO's preliminary decision in that regard.  Barnett v. 
Brown, 8 Vet. App. 1, 4 (1995).  As such, the issue on appeal 
has been recharacterized as that which is found on the 
coversheet of the decision.

In January 2010 the Veteran testified at a videoconference 
hearing before the undersigned Veterans Law Judge.  A 
transcript of that hearing has been associated with the 
claims file.


FINDINGS OF FACT

1.  By a rating decision in August 1996, the RO denied 
service connection for hypertension.  The Veteran was 
notified of his right to appeal, but a timely appeal was not 
filed.

2.  Evidence added to the record since the August 1996, 
considered in conjunction with the record as a whole, is new, 
relates to an unestablished fact necessary to substantiate 
the Veteran's claim, but does not raise a reasonable 
possibility of substantiating the Veteran's claim.




CONCLUSIONS OF LAW

1.  The RO's decision of August 1996 which denied service 
connection for hypertension, is final.  38 U.S.C.A. § 7105 
(West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2009).  

2.  New and material evidence has not been received to reopen 
the Veteran's claim for entitlement to service connection for 
hypertension.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 
C.F.R. § 3.156(a) (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VCAA

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) 
(West 2002); 38 C.F.R. § 3.159(b) (2009) Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must 
inform the claimant of any information and evidence not of 
record (1) that is necessary to substantiate the claim; (2) 
that VA will seek to provide; and (3) that the claimant is 
expected to provide in accordance with 38 C.F.R. 
§ 3.159(b)(1).  VCAA notice should be provided to a claimant 
before the initial unfavorable agency of original 
jurisdiction (AOJ) decision on a claim.  Pelegrini v. 
Principi, 18 Vet. App. 112 (2004); see also Mayfield v. 
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Further regarding notice, on March 3, 2006, the United States 
Court of Appeals for Veterans Claims (Court) issued its 
decision in the consolidated appeal of Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006).  The Court in 
Dingess/Hartman holds that the VCAA notice requirements of 
38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all 
five elements of a "service connection" claim.  As 
previously defined by the courts, those five elements 
include:  (1) veteran status; (2) existence of a disability; 
(3) a connection between the veteran's service and the 
disability; (4) degree of disability; and (5) effective date 
of the disability.  Upon receipt of an application for 
"service connection," therefore, the Department of Veterans 
Affairs (VA) is required to review the information and the 
evidence presented with the claim and to provide the claimant 
with notice of what information and evidence not previously 
provided, if any, will assist in substantiating or is 
necessary to substantiate the elements of the claim as 
reasonably contemplated by the application.  This includes 
notice that a disability rating and an effective date for the 
award of benefits will be assigned in the award of the 
benefit sought.

In Kent v. Nicholson, 20 Vet. App 1 (2006), the Court issued 
a decision that established significant new requirements with 
respect to the content of the VCAA notice for reopening 
claims.  According to the Court, in the context of a claim to 
reopen, the Secretary must look at the bases for the denial 
in the prior decision and to respond by providing the 
appellant with a notice letter that describes what evidence 
would be necessary to substantiate that element or elements 
required to establish service connection that were found 
insufficient in the previous denial.  
Further, in providing instruction as to what information 
would be considered "new and material", the Court indicated 
that "material" evidence would include (1) evidence on an 
element where the claimant initially failed to submit any 
competent evidence; (2) evidence on an element where the 
previously submitted evidence was found to be insufficient; 
(3) evidence on an element where the appellant did not have 
to submit evidence until a decision of the Secretary 
determined that an evidentiary presumption had been rebutted; 
or (4) some combination or variation of the above three 
situations.  "New" evidence would be considered new only if 
it had not been submitted previously to VA and was neither 
"cumulative nor redundant" of evidence already in the 
record.  

With respect to the issue on appeal, the agency of original 
jurisdiction (AOJ), prior to the initial adjudication of the 
claim, issued a notice letter to the Veteran in July 2004, 
that informed him of what evidence was required to 
substantiate the claim and of his and VA's respective duties 
for obtaining evidence and notified that a disability rating 
and effective date will be assigned in event of award of any 
benefit sought per Dingess/Hartman.  The Veteran was also 
informed of what new and material evidence could be submitted 
to reopen his claim for service connection for
hypertension, what type of evidence would qualify as "new" 
evidence, and per the requirements set forth in Kent, 
specifically informed him of what evidence would be necessary 
to substantiate the element or elements required to establish 
the claim that was found insufficient in the previous denial.  

With regard to the duty to assist, the claims file contains 
the Veteran's service treatment records, VA and private 
treatment records, and VA examination reports.  Additionally, 
the claims file contains the Veteran's statements in support 
of his claim.  The Board has carefully reviewed such 
statements and concludes that he has not identified further 
evidence not already of record.  The Board has also perused 
the medical records for references to additional treatment 
reports not of record, but has found nothing to suggest that 
there is any outstanding evidence with respect to the 
Veteran's claim.  38 C.F.R. § 3.159(c) (4).  

VA examinations and opinions with respect to the issue on 
appeal were obtained in March 2005, May 2005, and July 2008.  
38 C.F.R. § 3.159(c) (4).  To that end, when VA undertakes to 
provide a VA examination or obtain a VA opinion, it must 
ensure that the examination or opinion is adequate.  Barr v. 
Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds 
that the VA examinations and opinions obtained in this case 
are more than adequate, as they were predicated on a review 
of the Veteran's claims file and the examiners provided a 
complete rationale for the opinions stated, relying on and 
citing to the records reviewed.  Accordingly, the Board finds 
that VA's duty to assist with respect to obtaining a VA 
examination or opinion with respect to the issue on appeal 
has been met.  38 C.F.R. § 3.159(c) (4).  

Thus, based on the foregoing, the Board finds that all 
relevant facts have been properly and sufficiently developed 
in this appeal and no further development is required to 
comply with the duty to assist the Veteran in developing the 
facts pertinent to his claim.  Essentially, all available 
evidence that could substantiate the claim has been obtained.

Legal Criteria

The Board has reviewed all of the evidence in the Veteran's 
claims folder.  Although the Board has an obligation to 
provide reasons and bases supporting this decision, there is 
no need to discuss, in detail, the extensive evidence of 
record.  Indeed, the Federal Circuit has held that the Board 
must review the entire record, but does not have to discuss 
each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 
1380-81 (Fed. Cir. 2000).   Therefore, the Board will 
summarize the relevant evidence where appropriate, and the 
Board's analysis below will focus specifically on what the 
evidence shows, or fails to show, as to the claim.  

If all of the evidence is in relative equipoise, the benefit 
of the doubt should be resolved in the veteran's favor, and 
the claim should be granted.  38 U.S.C.A. § 5107 (West 2002); 
38 C.F.R. § 3.102 (2009).  However, if the preponderance of 
the evidence is against the claim, the claim must be denied.  
Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 
5107(b) (West 2002); 38 C.F.R. § 3.102 (2009).

In general, rating decisions that are not timely appealed are 
final.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 
20.1103 (2009).  

Pursuant to 38 U.S.C.A. § 7105(c) and 38 C.F.R. § 3.105 
(2009), a final decision by the RO may not thereafter be 
reopened and allowed, in the absence of clear and 
unmistakable error (CUE), except as provided by 38 U.S.C.A. § 
5108, which indicates that "[i]f new and material evidence is 
presented or secured with respect to a claim, which has been 
disallowed, the [VA] shall reopen the claim and review the 
former disposition of the claim."  Therefore, once an RO 
decision becomes final under section 7105(c), in the absence 
of CUE, and absent the submission of new and material 
evidence, the claim cannot be reopened or adjudicated by VA.  
38 U.S.C.A. §§ 5108, 7105(c)(West 2002); Barnett v. Brown, 83 
F.3d 1380, 1383 (Fed. Cir. 1996); 38 C.F.R. § 3.105.
A claimant may reopen a finally adjudicated claim by 
submitting new and material evidence.  

Under the provisions in effect from August 29, 2001, material 
evidence means existing evidence that, by itself or when 
considered with the 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) (2009).  

The Veteran's claim for whether new and material evidence has 
been presented to reopen a claim for entitlement to service 
connection for hypertension was received in June 2004.  
Therefore, the Board finds that the post August 29, 2001 
standard of review should be applied.  

For the purpose of establishing whether new and material 
evidence has been received, the credibility of the evidence, 
although not its weight, is to be presumed.  Justus v. 
Principi, 3 Vet. App. 510, 513 (1992).

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by active 
service.  38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. 
§§ 3.303, 3.304 (2009).

Present disability resulting from disease or injury in 
service is required to establish entitlement to service 
connection.  Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 
1997).  To establish service connection for a disability, 
there must be competent evidence of a current disability 
(medical diagnosis), of incurrence or aggravation of a 
disease or injury in service (lay or medical evidence), and 
of a nexus between the in-service injury or disease and the 
current disability (medical evidence).  Caluza v. Brown, 7 
Vet. App. 498, 507 (1995).

Regulations also provide that service connection may be 
granted for any disease diagnosed after discharge, when all 
the evidence, including that pertinent to service, 
establishes that the disease was incurred in service.  
38 C.F.R. § 3.303(d) (2009).

Legal Analysis

The Veteran asserts that new and material evidence has been 
submitted to reopen his claim for service connection for 
hypertension.  The record reflects that in an August 1996 
decision, the RO denied the Veteran's claim for service 
connection for hypertension on the basis that although the 
Veteran had an elevated blood pressure reading in April 1975 
and had a blood pressure reading that was considered 
borderline hypertension on his discharge examination, it was 
not diagnosed as such.  The RO also indicated that there was 
no evidence to show a diagnosis of hypertension in service or 
a compensable hypertensive reading within one year of the 
Veteran's discharge from service.  The Veteran did not 
perfect an appeal, and there has been no allegation of CUE in 
that regard.  As such, it is final.  38 U.S.C.A. § 7105.

The evidence received since the final August 1996 RO decision 
includes private and VA outpatient records showing a post-
service diagnosis of hypertension.  The additional evidence 
also includes a May 2005 VA examination report in which the 
examiner opined that the Veteran's hypertension was not as 
likely as not related to his military service.   According to 
the examiner, who reviewed the Veteran's claims file:
One elevated blood pressure is not 
sufficient to confirm a diagnosis of 
hypertension... [The Veteran] reports that 
he was seen for hypertension shortly 
after discharge.  I would be able to 
offer a favorable opinion if he could 
supply these records but at the present 
time I only have records showing 
hypertension more than 20 years after 
discharge.

Similarly, in July 2008, another VA examiner after reviewing 
the Veteran's claims file, opined that he was unable to 
provide an opinion as to the etiology of the Veteran's 
hypertension without resorting to mere speculation.  In 
reaching this conclusion, the examiner indicated that:

One isolated elevated BP in 1977 does not 
meet diagnostic criteria for 
hypertension.  There is no confirmed 
diagnosis of hypertension until about 9 
years following separation.  One elevated 
BP reading in 1977 is not necessarily 
related to a later diagnosis of 
hypertension. 

The additional evidence also includes an October 2008 
statement from the Veteran's sister and testimony that the 
Veteran provided during his January 2010 Board 
videoconference hearing. 

The aforementioned evidence is new because it was not of 
record at the time of the prior final RO denial in August 
1996.  Further, this evidence relates to an unestablished 
fact necessary to substantiate the claim, namely whether or 
not the Veteran's current hypertension is related to his 
reported in-service finding of borderline hypertension.  
However, this evidence, particularly the May 2005 VA medical 
opinion, in which the examiner opined that the Veteran's 
current hypertension was not as likely as not etiologically 
related to service and the July 2008 VA medical opinion in 
which the examiner indicated that he could not provide an 
opinion as to the etiology of the Veteran's hypertension 
without resorting to mere speculation, is not material 
because when considered by itself, or with previous evidence 
of record, does not raise a reasonable possibility of 
substantiating the claim.  

Further, with respect to the statements of the Veteran and 
his sister, the Board acknowledges that they are competent to 
provide statements as to their observations.  However, they 
are not competent to offer an opinion as to a medical 
diagnosis or medical causation.  As such, the additional 
statements by the Veteran and his sister while new, are not 
material evidence.  See Pollard v. Brown, 6 Vet. App. 11 
(1993) (lay assertions, even if new, still would not be 
material evidence); Moray v. Brown, 5 Vet. App. 211, 214 
(1993) (implicitly holding that if lay assertions of medical 
causation will not suffice initially to establish a plausible 
basis for the claim, then it necessarily follows that such 
assertions cannot serve as a predicate to reopen a claim).  

Accordingly, the Board finds that new and material evidence 
has not been received to reopen the Veteran's claim for 
service connection for hypertension.


ORDER

New and material evidence has not been received to reopen a 
claim of entitlement to service connection for hypertension, 
the claim is not reopened, and the appeal is denied.


____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs