Citation Nr: 1103003	
Decision Date: 01/24/11    Archive Date: 02/01/11

DOCKET NO.  95-02 790	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, 
California


THE ISSUES

1.  Whether new and material evidence has been received 
sufficient to reopen the previously denied claim for service 
connection for hypertension.

2.  Entitlement to special adaptive housing or special home 
adaptation grant.

3.  Entitlement to automobile or other conveyance and adaptive 
equipment.


REPRESENTATION

Appellant represented by:	Mark R. Lippman, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J.R. Bryant, Counsel


INTRODUCTION

The Veteran served on active duty from November 1946 to March 
1948.

This matter comes before the Board of Veterans' Appeals (Board) 
on appeal from rating actions by the above-referenced, Regional 
Office (RO).  The claim was subsequently transferred to the RO in 
Reno, Nevada.  More recently jurisdiction of this claim has been 
transferred back to the RO in Los Angeles, California.

This case was previously before the Board in February 1997, 
February 1998, and March 2003, and remanded for additional 
development and reajudication.

In July 2004, the Board declined to reopen the Veteran's service 
connection claim for hypertension; denied entitlement to service 
connection for a cardiac disability; denied entitlement to 
automobile or other conveyance and adaptive equipment; and denied 
entitlement to special adaptive housing or special home 
adaptation grant.

The Veteran appealed the July 2004 decision to the United States 
Court of Appeals for Veterans Claims (Court).  Pursuant to a 
Memorandum Decision, the Court, in a September 2008 Order, 
vacated that portion of the July 2004 decision that declined to 
reopen the service connection claim for hypertension; denied 
entitlement to automobile or other conveyance and adaptive 
equipment; and denied entitlement to special adaptive housing or 
special home adaptation grant.  The appeal of those issues was 
remanded to the Board.  The Court affirmed the Board's July 2004 
denial of entitlement to service connection for a cardiac 
disability, which is, therefore, no longer in appellate status.

In current status the case returns to the Board following the 
completion of development made pursuant to its April 2009 remand.

Please note this appeal has been advanced on the Board's docket 
pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. 
§ 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  An original claim for service connection for hypertension was 
denied by the RO in a January 1992 rating decision and not 
appealed.  

2.  Evidence associated with the claims file since the January 
1992 denial is duplicative or cumulative of evidence previously 
before the RO, and is not so significant that it must be 
considered in order to fairly decide the merits of the claim for 
service connection for hypertension.

3.  Service connection is in effect for the residuals of an 
appendectomy, rated as noncompensably disabling.

4.  The Veteran's service-connected disability does not involve 
the loss or permanent loss of use of one or both feet, the loss 
or permanent loss of use of one or both hands, permanent 
impairment of vision in both eyes, or ankylosis of the hips or 
knees.

5.  The Veteran does not have loss of use of a lower extremity or 
of both hands or blindness due to a service-connected disability.


CONCLUSIONS OF LAW

1.  The January 1992 rating action that denied service connection 
for hypertension is final.  38 U.S.C.A. § 7105 (West 1991); 38 
C.F.R. §§ 19.129, 19.192 (1991); currently 38 U.S.C.A. § 7105 
(West 2002); 38 C.F.R. § 20.302, 20.1103 (2010).

2.  New and material evidence has not been received sufficient to 
reopen the claim for service connection for hypertension.  
38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2001).

3.  The criteria for specially adapted housing or special home 
adaptation grant have not been met.  38 U.S.C.A. §§ 2101, 5103, 
5103A, 5107 (West 2002); 38 C.F.R. § 3.809 (2010).

4.  The criteria for automobile and adaptive equipment and/or 
adaptive equipment have not been met.  38 U.S.C.A. §§ 3901, 3902, 
5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.808 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's 
duty to notify and assist claimants in substantiating their claim 
for VA benefits, as codified in pertinent part at 38 U.S.C.A. 
§§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 
3.102, 3.159, 3.326(a) (2010).

Upon receipt of a complete or substantially complete application 
for benefits, VA is required to notify the claimant and his 
representative of any information, and any medical or lay 
evidence, that is necessary to substantiate the claim.  
38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).  Proper notice from VA 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.  38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 
23,353 (April 30, 2008).  This notice must be provided prior to 
an initial decision on a claim by the RO.  Mayfield v. Nicholson, 
444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. 
App. 112 (2004). 

The VCAA notice requirements apply to all five elements of a 
service connection claim:  (1) veteran status; (2) existence of 
disability; (3) connection between service and the disability; 
(4) degree of disability; and (5) effective date of benefits 
where a claim is granted.  Dingess v. Nicholson, 19 Vet. App. 
473, 484 (2006).

If complete notice is not provided until after the initial 
adjudication, such a timing error can be cured by subsequent 
legally adequate VCAA notice, followed by readjudication of the 
claim, as in a Statement of the Case (SOC) or Supplemental SOC 
(SSOC).  Moreover, where there is an uncured timing defect in the 
notice, subsequent action by the RO which provides the claimant a 
meaningful opportunity to participate in the processing of the 
claim can prevent any such defect from being prejudicial.  
Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); 
Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The Board notes that, in the case on appeal, the VCAA was not in 
effect at the time of the initial rating actions and therefore 
the notice requirements were provided to the Veteran after the 
rating actions were issued in this case.  However, following the 
Court Memorandum Decision, the Board remanded this case to the RO 
in April 2009 in order to specifically address the VCAA.  

In a letter dated in September 2009, the RO informed the Veteran 
of its duty to assist him in substantiating his claims under the 
VCAA, and the effect of this duty upon these claims.  The 
evidence needed to establish special adaptive housing, special 
home adaptation grant, and automobile or other conveyance and 
adaptive equipment was discussed.  The letter also informed him 
of what constituted new and material evidence to reopen the 
previously denied unappealed hypertension claim.  He was informed 
that evidence is new if it is submitted to the VA for the first 
time and that material evidence must pertain to the reason the 
claim was previously denied.  This correspondence also met the 
specificity required under Kent v. Nicholson, 20 Vet. App. 1 
(2006), as the Veteran was advised of the exact reason for the 
previous denial and the evidence needed to reopen the service 
connection claim.  The letter informed him of how disability 
ratings and effective dates are assigned, if service connection 
were to be granted.  See Dingess v. Nicholson, supra.  While the 
letter mistakenly listed the last final denial as December 1987, 
the correct date of the previous denial was listed on the April 
2009 remand document.  The mistake is incidental as it would not 
affect what was needed to reopen the claim or to establish the 
underlying claim of service connection.  The incorrect date 
listed is a harmless error, as it could not mislead the Veteran 
in a substantial way or otherwise be prejudicial.  

Following the September 2009 letter, a supplemental statement of 
the case was issued in December 2009 in which the RO had the 
opportunity to review this case following the VCAA letter.  

Hence, the Board finds that any failure on VA's part in not 
completely fulfilling the VCAA notice requirements prior to the 
RO's initial adjudication of this claim is harmless.  See ATD 
Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Cf. 38 
C.F.R. § 20.1102.  

The Board also finds VA has satisfied its duty to assist the 
Veteran in the development of his claims.  Relevant in-service 
and post-service treatment reports are of record and the Veteran 
has had the opportunity to present his argument at a personal 
hearing.  In addition, the case has been remanded on three 
separate occasions in order to assist the Veteran with the 
development of his claims.  

While the Veteran was not examined for the purpose of addressing 
his claims, given the facts of the case, a VA examination is not 
required.  Specifically, under the statute, an examination or 
opinion is necessary to make a decision on the claim when the 
record (1) contains competent evidence that the claimant has a 
current disability or persistent or recurrent symptoms of the 
disability; (2) contains evidence which indicates that the 
disability or symptoms may be associated with the claimant's 
active duty; and (3) does not contain sufficient medical evidence 
for VA to make a decision.  See 38 U.S.C.A. § 5103A(d).  

Here, the evidence of record is such that the duty to obtain a 
medical examination is not triggered with regard to these claims.  
The Board notes that VA need not conduct an examination or obtain 
a medical opinion with respect to the issue of whether new and 
material evidence has been received to reopen the previously 
denied hypertension claim because the duty under 38 C.F.R. 
§ 3.159(c)(4) applies to a claim to reopen only if new and 
material evidence is presented or secured.  38 U.S.C.A. 
§ 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. 
Nicholson, 20 Vet. App. 79 (2006).  Accordingly, the Board finds 
that there is no basis to find that a remand for an examination 
is required.  

VA has satisfied its duty to assist the Veteran in apprising him 
as to the evidence needed, and in obtaining evidence pertinent to 
his claims under the VCAA.  No useful purpose would be served in 
remanding this matter for yet more development.  Such a remand 
would result in unnecessarily imposing additional burdens on VA, 
with no additional benefit flowing to the appellant.  

Thus, the Board concludes that no further notice or assistance to 
the Veteran is required to fulfill VA's duty to assist him in the 
development of the claims.  Smith v. Gober, 14 Vet. App. 227 
(2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. 
Principi, supra; & Quartuccio v. Principi, supra.  

II.  Law and Analysis - Hypertension

The RO originally denied the claim of service connection for 
hypertension in January 1992 on the basis that there was no 
evidence that it had its onset during service or was otherwise 
related to service.  

The Veteran did not appeal the decision and it is final.  
38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 
20.1103 (2010).  In 1995, he filed an informal claim, seeking to 
reopen the matter.  

To reopen a claim which has been previously denied and has become 
final, the claimant must present new and material evidence.  38 
U.S.C.A. § 5108 (West 2002).  

It should be noted that the regulation pertaining to the 
definition of new and material evidence has been amended, 
effective for claims filed on or after August 29, 2001.  See 
38 C.F.R. § 3.156(a); 66 Fed. Reg. 45,620 (Aug. 29, 2001).  
Since, the Veteran's most recent request to reopen his claim was 
filed prior to that date, the amended regulatory provisions 
governing new and material evidence are not applicable.  
Consequently, the appeal will be decided under the earlier 
version of section 3.156(a), as is outlined below. 

According to the regulation, "new" evidence has not been 
previously submitted to agency decision makers and bears directly 
and substantially upon the specific matter under consideration.  
"Material" evidence is evidence which, by itself or in 
connection with evidence previously assembled, is so significant 
that it must be considered in order to fairly decide the merits 
of the claim.  New and material evidence cannot be cumulative or 
redundant.  38 C.F.R. § 3.156(a).  

Before the Board may reopen a previously denied claim, it must 
conduct an independent review of the evidence to determine 
whether new and material evidence has been submitted sufficient 
to reopen a prior final decision.  The Board does not have 
jurisdiction to consider a claim which has been previously 
adjudicated unless new and material evidence is present, and 
before the Board may reopen such a claim, it must so find.  
Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 
Barnett v. Brown, 8 Vet. App. 1 (1995); see Butler v. Brown, 
9 Vet. App. 167, 171 (1996); 38 U.S.C.A. §§ 5108, 7104(b).  If 
the Board finds that new and material evidence has not been 
submitted, it is unlawful for the Board to reopen the claim.  See 
McGinnis v. Brown, 4 Vet. App. 239, 244 (1993).

In general, service connection may be granted for disability 
resulting from disease or injury incurred in or aggravated by 
active military service.  38 U.S.C.A. § 1110; 38 C.F.R. 
§ 3.303(a).  Service connection may also 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).

The RO's current denial in this case is predicated upon the fact 
that new and material evidence has not been submitted to reopen 
the claim.  Thus, any "new" evidence would have to be so 
significant that it must be considered in order to fairly decide 
whether hypertension was incurred in or aggravated by service.  

The evidence of record at the time of the last prior final denial 
of service connection for hypertension (in January 1992), 
consisted of service treatment records (STRs), which are entirely 
negative for hypertension complaints or symptomatology.  In fact, 
the claims folder is devoid of any treatment records or other 
medical documents until an April 1987 VA outpatient treatment 
report, almost 40 years after the Veteran's separation in 1948.  
While the treatment record shows the onset of hypertension since 
August 1986, there is no suggestion in the record and certainly 
no etiological opinion suggesting that it was related to the 
Veteran's military service.  

Evidence received since the January 1992 rating decision is 
voluminous, consisting of several volumes of evidence that 
includes VA and private outpatient treatment records dated from 
1992 to 2009; testimony from a personal hearing held in September 
1997; and the Veteran's written statements.  The outpatient 
treatment records in some cases are duplicates, which when not 
taken into consideration, show ongoing evaluation of the 
Veteran's various current medical conditions, including 
hypertension.  The fact that the Veteran had hypertension at the 
time of the prior rating determination was not in dispute.  Here 
none of the newly-received evidence is pertinent to the question 
of whether the Veteran's hypertension is related to his military 
service, (which is the pivotal issue underlying the claim for 
service connection).  Thus, this medical evidence cannot provide 
a basis to reopen the previously denied claim.

A lay witness is competent to testify as to the occurrence of an 
in-service injury or incident where such issue is factual in 
nature.  Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  In some 
cases, lay evidence will also be competent and credible on the 
issues of diagnosis and etiology.  See Jandreau v. Nicholson, 492 
F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Robinson v. 
Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (non-precedential).  
Specifically, lay evidence may be competent and sufficient to 
establish a diagnosis where (1) a layperson is competent to 
identify the medical condition, (2) the layperson is reporting a 
contemporaneous medical diagnosis, or (3) lay testimony 
describing symptoms at the time supports a later diagnosis by a 
medical professional.  Jandreau, 492 F.3d at 1377; see also 
Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  A 
layperson is competent to identify a medical condition where the 
condition may be diagnosed by its unique and readily identifiable 
features.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  
Additionally, where symptoms are capable of lay observation, a 
lay witness is competent to testify to a lack of symptoms prior 
to service, continuity of symptoms after in-service injury or 
disease, and receipt of medical treatment for such symptoms.  
Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Charles v. 
Principi, 16 Vet. App 370, 374 (2002).

In September 1997, the Veteran testified at a RO hearing that he 
suffered from headaches, dizziness, blurred vision, and shortness 
of breath during his service.  However he could not recall any of 
his blood pressure readings and indicated that he received no 
medication for hypertension during service.  To the extent that 
he has offered testimony and lay statements in an attempt to 
establish service connection, the Board notes that such evidence 
essentially constitutes reiterations of his assertions made in 
connection with the prior denial, and, thus, cannot be considered 
"new" within the meaning of 38 C.F.R. § 3.156(a).  See Reid v. 
Derwinski, 2 Vet. App. 312, 315 (1992).  The Veteran is not 
qualified to state that symptoms in service were associated with 
hypertension; even medical professionals require blood pressure 
readings and other testing to diagnose hypertension.  There is no 
clinician who has suggested that the Veteran's symptoms in 
service represented the onset of hypertension.  The Veteran's 
testimony is not new and material in nature.    

Accordingly, the Board finds that new and material evidence has 
not been received with regard to the Veteran's claim for service 
connection for hypertension.  38 U.S.C.A. § 5108; 38 C.F.R. 
§ 3.156(a).


III.  Law and Analysis - Special Adaptive Housing and 
Special Home Adaptation Grant and/or Automobile or other 
Conveyance and Adaptive Equipment 

The Veteran is seeking entitlement to financial assistance in 
acquiring specially adapted housing assistance or a special home 
adaptation grant due to loss of use of his right upper extremity 
and some loss of vision that requires him to use a wheelchair.  
He is also seeking entitlement to an automobile and/or adaptive 
equipment on the same basis.  

Service connection is currently in effect for appendectomy 
residuals, rated as non-compensably disabling.

Post service records disclose that, in 1986 the Veteran was 
diagnosed with hypertension and in 1992 he suffered a left basal 
ganglia hemorrhage (stroke).  A July 1993 VA treatment report 
noted the Veteran had residual right hemiparesis and aphasia as a 
result of the stroke, but was able to ambulate independent of 
assistance from devices for short distances.  However, he did 
require a wheelchair for long distances.  More recent records 
show that in 2000 the Veteran began using a motorized scooter 
because of difficulty pushing his wheelchair with only one 
useable arm.  Neither the hypertension or the stroke residuals 
are service-connected disabilities.  

Applicable regulations provide that specially adapted housing is 
available to a veteran who has a permanent and total service-
connected disability due to: (1) the loss, or loss of use, of 
both lower extremities, such as to preclude locomotion without 
the aid of braces, crutches, canes, or a wheelchair; or (2) 
blindness in both eyes, having only light perception, plus the 
anatomical loss or loss of use of one lower extremity; or (3) the 
loss or loss of use of one lower extremity, together with 
residuals of organic disease or injury or with loss of use of one 
upper extremity, which so affect the functions of balance or 
propulsion as to preclude locomotion without the aid of braces, 
crutches, canes or a wheelchair.  38 U.S.C.A. § 2101(a) (West 
2002); 38 C.F.R. § 3.809 (2010).  

The phrase "preclude locomotion" is defined as the necessity 
for regular and constant use of a wheelchair, braces, crutches or 
canes as a normal mode of locomotion although occasional 
locomotion by other methods may be possible.  38 C.F.R. § 
3.809(d) (2010).

If entitlement to specially adapted housing is not established, 
the veteran can qualify for a grant for necessary special home 
adaptations if he has compensation based on permanent and total 
service-connected disability which is due to one of the 
following: (1) blindness in both eyes with 5/200 visual acuity or 
less; or (2) includes the anatomical loss or loss of use of both 
hands.  The assistance referred to in this section will not be 
available to any veteran more than once38 C.F.R. § 3.809a (2010).

As the foregoing regulation suggests, entitlement to the claimed 
benefit is predicated on a finding that the disability is service 
connected.  The Veteran's only service connected disability 
consists of appendectomy residuals, which have been found to be 
noncompensable.  There is no evidence of loss or permanent loss 
of use of one or both hands or feet or permanent impairment of 
vision of both eyes as a result of it.  Significantly, the 
Veteran himself has never contended that his disorders are 
related to his service-connected appendectomy sequela.  Although 
there is evidence that the Veteran is essentially confined to a 
wheelchair, this is due to residuals of a non service-connected 
stroke.  No medical opinion or other competent evidence to the 
contrary has been submitted.

The Veteran also does not qualify for a grant for necessary 
special home adaptations, as he does not have compensation based 
on permanent and total service-connected disability which is due 
to blindness in both eyes with 5/200 visual acuity or less, or 
includes the anatomical loss or loss of use of both hands.  

Given the foregoing, there is no legal basis for the grant of 
specially adapted housing or a special home adaptation grant.  
Accordingly, the claim must be denied as a matter of law.  
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

To be eligible for financial assistance in purchasing an 
automobile or other conveyance, a veteran must establish that he 
has a loss or permanent loss of use of one or both feet; loss or 
permanent loss of use of one or both hands; or permanent 
impairment of vision of both eyes.  The visual impairment must be 
corrected to 20/200 or less in the better eye, or visual acuity 
of more than 20/200 with a limitation of peripheral vision to a 
field no greater that 20 degrees.  Further, the disorder must be 
service-connected.  38 U.S.C.A. § 3902(a)(b); 38 C.F.R. § 3.808 
(2010).  

Additionally, a veteran who is not eligible for assistance under 
the foregoing criteria may nevertheless be entitled to adaptive 
equipment if he is service-connected for ankylosis of one or both 
knees or one or both hips.  38 C.F.R. § 3.808(b)(1)(iv).

However, as shown above, the Veteran is service connected for 
only one noncompensable disorder and as clearly indicated, the 
loss of use of his right upper extremity has not been shown to be 
related to service or service-connected disability.  Thus, the 
evidence of record shows that the Veteran does not meet the 
criteria for automobile and adaptive equipment or adaptive 
equipment only.  Accordingly, the claim must be denied as a 
matter of law.  Sabonis supra.


ORDER

New and material evidence not having been received, the claim to 
reopen the issue of entitlement to service connection for 
hypertension is denied.  

Entitlement to special adaptive housing or a special home 
adaptation grant is denied.

Entitlement to an automobile or other conveyance and adaptive 
equipment is denied.



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs