Citation Nr: 1800322 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 16-25 164 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, The Republic of the Philippines THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for hypertension/hypertensive cardiovascular disease. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for residuals of hernia, status post herniorrhaphy. 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a disability manifested by chronic sore throat. 4. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for low back disability. 5. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for kidney disability. ATTORNEY OF THE BOARD Sean G. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from January 1973 to June 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, The Republic of the Philippines. This appeal has been advanced on the Board's docket. 38 U.S.C. § 7107(a)(2) (West 2014); 38 C.F.R. § 20.900(c) (2017). FINDINGS OF FACT 1. The Veteran's original claims of entitlement to service connection for hypertension/hypertensive cardiovascular disease; a disability manifested by chronic sore throat; residuals of hernia, status post herniorrhaphy; low back disability; and kidney disability were denied in a March 2007 rating decision. 2. Although the Veteran was provided notice of the rating decision and notice of his appellate rights, he did not timely perfect an appeal thereafter for the issues of entitlement to service connection for a low back disability and kidney disability and did not submit new and material evidence during the appeals period. 3. After the March 2007 rating decision, the Veteran perfected appeals regarding the issues of entitlement to service connection for hypertension/hypertensive cardiovascular disease, disability manifested by chronic sore throat, and residuals of hernia, status post herniorrhaphy. 4. In September 2009, the Board denied the issues of entitlement to service connection for hypertension/hypertensive cardiovascular disease, disability manifested by chronic sore throat, and residuals of hernia, status post herniorrhaphy. 5. Since the March 2007 rating decision and the September 2009 Board decision, evidence has been received that has not previously been considered by VA, but does not relate to an unestablished fact necessary to substantiate any of the above-captioned claims. CONCLUSIONS OF LAW 1. The March 2007 rating decision is final. 38 U.S.C. § 7105(c) (West 2002); 38 U.S.C. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. The September 2009 Board decision is final. 38 U.S.C. § 7104(b) (West 2002); 38 U.S.C. § 7104(b) (West 2014); 38 C.F.R. § 20.1100 (2009); 38 C.F.R. § 20.1100 (2017). 3. Evidence received to reopen the claims of entitlement to service connection for hypertensive cardiovascular disease; a disability manifested by chronic sore throat; residuals of hernia, status post herniorrhaphy; low back disability; and kidney disability is not new and material and, therefore, the claims are not reopened. 38 U.S.C. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran's original claims of entitlement to service connection for hypertensive cardiovascular disease, a disability manifested by chronic sore throat, residuals of hernia, status post herniorrhaphy, low back disability, and kidney disability denied in a March 2007 rating decision. Although the Veteran received notice of this decisions and notice of his appellate rights, he perfected an appeal for only the issues of entitlement to service connection for hypertensive cardiovascular disease, a disability manifested by a chronic sore throat, and residuals of a hernia, status post herniorrhaphy. Furthermore, he did not submit new and material evidence during the appellate period following March 2007 rating decision. See 38 C.F.R. § 3.156(b). Consequently, the March 2007 rating decision is final based on the evidence then of record with respect to the issues of entitlement to service connection for a low back disability and kidney disability. 38 U.S.C. § 7015; 38 C.F.R. §§ 3.104, 20.302, 20.1103. In September 2009, the Board denied the claims of entitlement to service connection for hypertension/hypertensive cardiovascular disease, a disability manifested by a chronic sore throat, and residuals of a hernia, status post herniorrhaphy. The Veteran did not appeal the Board decision. Although a decision is final, a claim will be reopened if new and material evidence is received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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. "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 un-established fact necessary to substantiate the claim. See 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after VA has found that evidence is new and material. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). If the claim is reopened, it will be reviewed on a de novo basis. 38 U.S.C. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273, 282-83 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). Although the RO denied reopening the Veteran's claims, RO decisions are not binding on the Board and, consequently, the Board must first decide whether new and material evidence has been received to reopen the Veteran's claims. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993) (holding that Board reopening is unlawful when new and material evidence has not been submitted). As the March 2007 rating decision and the September 2009 Board decision are the last final disallowances with respect to these claims, the Board must review all of the evidence submitted since those decisions to determine whether each of the Veteran's above-captioned claims should be reopened and re-adjudicated on a de novo basis. Evans, 9 Vet. App. at 282-83. In the March 2007 rating decision, the RO denied the claim of entitlement to service connection for a low back disability because it determined that the evidence of record did establish this disability onset during the Veteran's active service, was present to a compensable level within one year of his service discharge, or was otherwise etiologically related to his active service. The RO also determined that that the evidence did not establish a current diagnosis of kidney disability. In the September 2009 decision, the Board determined that the evidence did not establish the presence of a disability manifested by chronic sore throat, and that the Veteran's hypertensive cardiovascular disease and residuals of hernia, status post herniorrhaphy, were not incurred in or aggravated by his active service. Since the March 2007 rating decision and the September 2009 Board decision, the Veteran has not submitted or identified evidence demonstrating the presence of a kidney disability or a disability manifested by chronic sore throat, beyond his own assertions. These assertions are not new, however, as they are simply reiterations of the assertions of record at the time of the prior final denials. Although the Veteran submitted new evidence as to the ongoing presence of and treatment for a low back disability, hypertension/hypertensive cardiovascular disease, and residuals of hernia, status post herniorrhaphy, this evidence is not material as does not address the etiology of these disabilities. The Veteran has not otherwise submitted or identified evidence that these disabilities onset during his active service or are etiologically related to his active service. Again, the Veteran asserted that his low back disability, hypertension/hypertensive vascular disease, and residuals of hernia, status post herniorrhaphy, were incurred in or due to his active service. However, these assertions were previously considered by VA in the March 2007 rating decision and September 2009 Board decision and, thus, they are not new evidence. He is simply restating the claim again without new evidence. Based on the above, the Board finds new and material evidence has not been submitted to reopen the Veteran's claims. As the preponderance of the evidence is against reopening the Veteran's claims, the benefit of the doubt doctrine is not applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER New and material evidence, having not been received, the claim of entitlement to service connection for hypertension is not reopened. New and material evidence, having not been received, the claim of entitlement to service connection for residuals of hernia, status post herniorrhaphy, is not reopened. New and material evidence, having not been received, the claim of entitlement to service connection for a disability manifested by chronic sore throat, is not reopened. New and material evidence, having not been received, the claim of entitlement to service connection for low back disability is not reopened. New and material evidence, having not been received, the claim of entitlement to service connection for kidney disability is not reopened. JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs Department of Veterans Affairs