Citation Nr: 1338449 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 12-07 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension secondary to service-connected diabetes mellitus type II. REPRESENTATION Appellant represented by: John P. March, Accredited Agent ATTORNEY FOR THE BOARD J. L. Wolinsky Associate Counsel INTRODUCTION The Veteran had active military service from September 1969 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The RO denied the Veteran's request to reopen the claim in January 2009. Following the submission of additional evidence received within one year of this rating decision, the RO readjudicated the issue in November 2009, which again denied reopening the claim. The Veteran timely submitted a NOD in November 2010 and perfected his appeal by way of a March 2012 VA Form 9 (Appeal to the Board of Veteran's Appeals). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his electronic file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. In a May 2006 rating decision, the RO denied service connection for hypertension, finding that hypertension was not shown in service or within one year of his service discharge and that evidence did not show that hypertension was the result of service-connected diabetes. The RO denied direct and secondary service connection for hypertension. 2. Evidence received since the May 2006 rating decision, is cumulative or redundant of evidence previously considered and does not raise a reasonable possibility of substantiating the claim of service connection for hypertension, to include as secondary to service-connected diabetes. CONCLUSIONS OF LAW 1. The May 2006 rating decision denying entitlement to service connection for, hypertension. To include as secondary to the service-connected diabetes mellitus is final. 38 U.S.C.A. §§ 7104, 7105(d) (West 2002 & Supp. 2013); 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. Since the May 2006 rating decision, new and material evidence has not been received, the claim for hypertension, to include as secondary to the service-connected diabetes mellitus is not reopened and remains denied. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA VA has a statutory and regulatory duty to notify and assist veterans in substantiating a claim for VA benefits pursuant to The Veterans Claims Assistance Act (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the veteran and his or her representative or agent, 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the Veteran 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 Veteran is expected to provide. With respect to requests to reopen previously denied claims, a claimant must be notified of both what is needed to reopen the claim and what is needed to establish the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In the case at hand, the record reflects that the RO provided the Veteran with the requisite notice by letter mailed in July 2008. The letter provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The July 2008 letter also provided notice regarding the need to submit new and material evidence to reopen the Veteran's previously denied claim, and advised the Veteran of the bases for the prior denials. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The record also reflects that VA has made reasonable efforts to obtain all relevant records pertinent to the claim herein decided. Pertinent medical evidence associated with the claims file consists of service treatment records, VA treatment records, VA examinations, and private medical records from Pinnacle Internal Medicine and Cary Cardiology. As part of the duty to assist VA is required to provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). However, VA is not required to provide a medical examination or medical opinion to a Veteran who "attempts to reopen a finally adjudicated claim until or unless 'new and material evidence is presented or secured." Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1341 (2003) (discussing 38 C.F.R. § 3.159(c)(4)). The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claims. II. New and Material Evidence A. Laws & Regulations The Veteran seeks to reopen a previously denied claim of service connection for hypertension as secondary to his service-connected disability of diabetes. In general, RO decisions are final when they are not timely appealed. See 38 U.S.C.A. § 7105. Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 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). Only evidence presented since the last final denial will be evaluated in the context of the entire record. See Evans v. Brown, 9 Vet. App. 273 (1996). 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. 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). A new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim. Boggs v. Peake, 520 F.3d 1330, 1336 (2008). A claim based upon the same factual basis may not be considered, unless the evidence supporting the Veteran's new theory of causation constitutes new and material evidence. Id. All theories of entitlement that pertain to the same disability, or same benefit, constitute the same claim. Roebuck v. Nicholson¸ 20 Vet. App. 307, 313 (2007). B. Background At the time of the May 2006 rating decision which denied hypertension secondary to the Veteran's service-connected diabetes, the evidence consisted of service treatment records, a VA examination from February 2006, the Veterans Application for Compensation and Pension, private medical records from Pinnacle Internal Medicine from October 2004 to August 2005, and private medical records from Cary Cardiology from October 2004 to May 2005. The May 2006 denial was based upon the Veteran's March 2006 VA exam. At the March 2006 examination, the examiner diagnosed the Veteran as having "hypertension not secondary to diabetes mellitus". The RO in May 2006 found that the Veteran was not diagnosed with hypertension during military service or to a compensable level within one year from service and therefore the Veteran was denied service connection on a direct and presumptive basis. The RO denied secondary service connection based on the diagnosis of the March 2006 VA exam. Since May 2006, VA has received VA treatment records from November 2007 to October 2011, an exercise cardiolite stress report from September 2010, and a treatment note from Carey Cardiology for a visit in December 2005. Since the May 2006 denial, the Veteran received a diagnosis of Ischemic Heart Disease (IHD) in February 2011. In July 2011, by rating decision, the Veteran received 100 percent disability for Agent Orange associated Coronary Artery Disease. The grant was based on the results of the Veteran's IHD exam, administered in February 2011. The results of this examination show that the Veteran was diagnosed with IHD, along with coronary artery disease. The exam specifically stated that IHD does not include hypertension or peripheral manifestations which are generally not within the definition of IHD. The examiner made no opinion or statement regarding the Veteran's hypertension as related to his service-connected diabetes. The Veteran through his accredited agent contended on his Form 9 that his hypertension was aggravated by his service-connected diabetes and should therefore be compensated for the degree of aggravation pursuant to Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran's Form 9 submission included assertions that the Veteran's hypertension is secondary to his service-connected diabetes. The Form 9 submission did not contain any evidence, and merely offered statements from the Veteran, that he should be service-connected, and that a veteran may be compensated when a veteran's nonservice connected condition is aggravated as a result of the veteran's service-connected condition. No evidence of aggravation to the Veteran's nonservice connected hypertension was provided with the Form 9. C. Analysis The record since the May 2006 rating decision has been supplemented by new, but not material evidence, and therefore does not entitle the Veteran to have his claim reopened. In May 2006, the RO denied the claim of service connection for hypertension. The RO determined that direct service connection for hypertension was not warranted as there was no diagnosis of hypertension in service. The RO also noted that presumptive service connection for hypertension was not warranted as there was no evidence showing that hypertension was diagnosed within one year of the Veteran's service discharge. Moreover, the RO determined that secondary service connection was not warranted, noting that there was no evidence showing that hypertension was the result of the service-connected diabetes. The Board observes that the evidence submitted since the May 2006 final rating decision denying service connection for hypertension does not show that the Veteran's hypertension was incurred in service, was diagnosed within one year of his service-discharge or is secondary to a service-connected disability. The evidence showing that the Veteran has a diagnosis of hypertension is cumulative of evidence previous of record and cannot be considered new evidence. Additionally, this evidence is not material as it does not raise a reasonable possibility of substantiating the claim of service connection by showing that hypertension was incurred in service, within a year of service discharge, or is secondary to a service-connected disability. The Veteran contends in his Form 9 that his hypertension was aggravated by his service-connected diabetes and therefore warrants compensation. This, however, is merely a new theory of entitlement, as the May 2006 rating decision contemplated service connection of the Veteran's hypertension on a secondary basis to his service-connected diabetes. A new theory of entitlement based on the same factual basis of a previous claim must provide new and material evidence. See Boggs at 1336; See also Roebuck at 313. The Form 9 submission, is new, but does not provide evidence to any facts unestablished at the time of the Veteran's May 2006 denial. The contention of aggravation by the Veteran still requires new and material evidence regarding the relationship between the Veteran's hypertension and service-connected diabetes in order to be reopened. The Veteran failed to provide any medical evidence which could substantiate his claim of secondary service connection based on aggravation. In conclusion, the Board notes that the Veteran has submitted new evidence in the form of treatment records, a VA Ischemic Heart Disease examination, a cardiolite stress test, and assertions from the Veteran. This evidence however, is not material as it does not raise a reasonable possibility of substantiating the claim of service CONTINUE ON THE NEXT PAGE connection for hypertension. As such, the claim of service connection for hypertension cannot be reopened and the claim remains denied. ORDER As new and material evidence has not been received, the application to reopen a claim of service connection for hypertension secondary to service-connected diabetes is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs