Citation Nr: 1746966 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 17-18 550 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for rheumatic fever. 2. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for rheumatic heart disease. 3. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a right knee disability, to include rheumatic right knee. 4. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a left knee disability, to include rheumatic left knee 5. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for agoraphobia with claustrophobia, anxiety and hyperventilation. ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to February 1968. This appeal is before the Board of Veterans' Appeals (Board) from a July 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). It has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). In August 2013, the Board received a written request by the Veteran to revoke his previous representative as power of attorney. He has not appointed a power of attorney since then. See 38 C.F.R. §§ 14.631(a), (f)(1). FINDINGS OF FACT 1. The claims for service connection for residuals of rheumatic fever, to include rheumatic heart disease, and for bilateral knee disability were most recently in a July 2013 rating decision; the Veteran did not appeal the rating decision. 2. No additional evidence received since the final July 2013 rating decision relates to an unestablished fact necessary to substantiate the claims. 3. Service connection for agoraphobia with claustrophobia, anxiety and hyperventilation was previously denied in a May 1988 Board decision. 4. No additional evidence received since the final May 1988 Board decision relates to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The July 2013 rating decision denying service connection for rheumatic fever, rheumatic heart disease, and right and left knee disabilities is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.156(b) (2016). 2. The additional evidence presented since the July 2013 rating decision is not new and material, and the claim for service connection for rheumatic fever is not reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2016). 3. The additional evidence presented since the July 2013 rating decision is not new and material, and the claim for service connection for rheumatic heart disease is not reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2016). 4. The additional evidence presented since the July 2013 rating decision is not new and material, and the claim for service connection for a right knee disability, to include rheumatic right knee, is not reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2016). 5. The additional evidence presented since the July 2013 rating decision is not new and material, and the claim for service connection for a left knee disability, to include rheumatic left knee is not reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2016). 6. The May 1988 Board decision denying service connection for agoraphobia with claustrophobia, anxiety and hyperventilation is final. 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. §§ 20.1100 (2016). 7. The additional evidence presented since the May 1988 Board decision is not new and material, and the claim for service connection for agoraphobia with claustrophobia, anxiety and hyperventilation is not reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has limited the discussion below to the relevant evidence required to support its findings of facts and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Pertinent procedural regulations provide that "[n]othing in [38 U.S.C.A. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C.A. § 5108]." 38 U.S.C.A. § 5103A(f). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). New evidence means existing evidence not previously submitted to VA. 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). A. Rheumatic fever, rheumatic heart disease, and right and left knee disability In an October 2010 decision, the Board denied service connection for residuals of rheumatic fever, to include rheumatic heart disease, and for bilateral knee disability. In that decision, the Board noted that at the time of preinduction physical examination the Veteran gave a history of rheumatic fever, at age six, with questionable cardiac sequelae, but that no abnormal physical findings were reported and service treatment records were negative for any further findings related to rheumatic fever or the heart. It also noted that, during service, the Veteran received treatment on one occasion for an injured knee, reported as "difficulty to full extension," and for "pulled muscles in the knee" on another occasion in September 1966 while playing football. In denying the Veteran's claims, the Board relied on July 2006 and February 2010 VA examinations containing negative etiological opinions. Such opinions were based on factors including the following: there were no findings with regard to rheumatic fever or cardiac findings, no evidence of heart murmur or evidence of congestive heart failure, and X-ray studies showed no radiographic evidence of active cardiopulmonary disease; the Veteran had coronary artery disease related to his aging process and cardiac risks; his current bilateral knee disability was osteoarthritis and not related to any episode of acute rheumatic fever, and there was no sequelae of the rheumatic fever; and while the Veteran sustained several knee injuries in service, he currently had unrelated bilateral knee degenerative joint disease most likely due aging process and genetic predisposition. That Board decision became final. See 38 U.S.C.A. § 7104; 38 C.F.R. §§ 20.1100. The RO most recently declined to reopen the Veteran's claims in a July 2013 rating decision on the basis that the Veteran had not submitted new and material evidence. This decision was not appealed, and no new evidence pertinent to the claim was received by VA within one year from the date that the RO mailed notice of the decision to the Veteran. Therefore, that decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103; see also 38 C.F.R. § 3.156(b). Pertinent evidence obtained since the July 2013 rating decision includes statements from the Veteran and his wife. The Veteran's wife asserted, in an August 2015 statement, that his knee, rheumatic fever, and heart claims should be granted. Initially, however, the Board notes that the Veteran's wife's assertions are essentially the same as those from her in a September 2007 statement that was of record at the time of the Veteran's prior Board and RO denials. Such assertions are generally that the Veteran was sick in service and that his disease progressed after service. To the extent that she asserts that the Veteran had rheumatic fever or any residuals thereof in service resulting in residual disability, again, such assertions are cumulative of assertions she has previously made. Furthermore, she is not competent to make any such determination contradicting the competent medical evidence previously relied on by VA in denying the Veteran's claims. The Veteran's wife further asserted that the Veteran had injured his knees in service, which the Veteran has also asserted in several newly submitted statements. However, such in-service knee injuries had already been acknowledged and considered by the prior VA examiners and by VA in denying the Veteran's claim, and were established at the time of the previous denials. Finally, the record contains several newly submitted statements by the Veteran vaguely asserting error in his separation examination. However, there is no explanation as what any such error was specifically, or as to how any such error relates to any unestablished fact needed to substantiate his claim. Given the above, the Board finds that no newly-submitted, non-redundant evidence, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the Veteran's previously denied service connection claims for rheumatic fever, rheumatic heart disease, or a right or left knee disability, even considering the relatively low threshold for reopening. See Justus v. Principi, 3 Vet. App. 510, 512-513 (1992); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, new and material evidence has not been submitted to reopen the Veteran's service connection claims, and they must remain denied. B. Agoraphobia with claustrophobia, anxiety and hyperventilation Agoraphobia with claustrophobia, anxiety and hyperventilation was denied by the RO in a March 1985 decision, appealed to the Board, and denied by the Board in a May 1988 decision that became final. See 38 U.S.C.A. § 7104; 38 C.F.R. §§ 20.1100. The basis of the Board's denial was as follows: At the time of the appellant's entry into active duty, his psychiatric condition was clinically evaluated as normal. The service medical records contain no definitive findings diagnostic of an acquired psychiatric disease. At the time of the separation examination, no psychiatric abnormalities were reported. The first post service clinical confirmation of an acquired psychiatric disability was in the 1980's during which time the appellant was treated for agoraphobia with anxiety and panic attacks. The January 1985 Veterans Administration hospital report contains a diagnosis of a somatization disorder and agoraphobia with panic attacks. This is many years following the appellant's release from active duty. Additionally, if in fact there was any psychiatric illness present prior to service, there is no evidence which indicates that he underwent any chronic pathological advancement during active duty. Since the final May 1988 Board decision, further treatment records of the Veteran's psychiatric condition have been associated with the record. However, these are not material as the existence of his claimed condition was not at issue at the time of, or a basis of, the previous denial. The Veteran has also submitted several statements regarding the treatment of his agoraphobia by VA in the 1980's, and a July 2016 statement indicating that the military should have known that he had had agoraphobia with panic attacks at beginning of his service. However, he has not explained, and the record does not indicate, how such assertions, if true, relate to an unestablished fact needed to substantiate his claim; specifically, that his agoraphobia disorder was incurred in or caused by service or, if it predated service, was aggravated therein. Given the above, the Board finds that no newly submitted, non-redundant evidence, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the Veteran's previously denied service connection claim, even considering the relatively low threshold for reopening. See Justus, 3 Vet. App. at 512-513; see also Hodge, 155 F.3d at 1363; Shade, 24 Vet. App. 110. Accordingly, new and material evidence has not been submitted to reopen the Veteran's service connection claim for agoraphobia with claustrophobia, anxiety and hyperventilation, and it must remain denied. ORDER New and material evidence not having been submitted, the claim for entitlement to service connection for rheumatic fever is not reopened and remains denied. New and material evidence not having been submitted, the claim for entitlement to service connection for rheumatic heart disease is not reopened and remains denied. New and material evidence not having been submitted, the claim for entitlement to service connection for a right knee disability, to include rheumatic right knee, is not reopened and remains denied. New and material evidence not having been submitted, the claim for entitlement to service connection for a left knee disability, to include rheumatic left knee, is not reopened and remains denied. New and material evidence not having been submitted, the claim for entitlement to service connection for agoraphobia with claustrophobia, anxiety and hyperventilation is not reopened and remains denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs