Citation Nr: 18146659 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 15-02 443 DATE: October 31, 2018 ORDER The claim for entitlement to service connection for respiratory disorder is reopened. The preponderance of the evidence does not establish that there is new and material evidence to warrant reopening the claim for entitlement to service connection for hypertension. REM ANDED Entitlement to service connection for a respiratory disorder is remanded. FINDINGS OF FACT 1. An April 2003 rating decision denied entitlement to service connection for a respiratory disorder. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the notice of that rating decision. 2. The evidence received since April 2003, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for a respiratory disorder. 3. A November 2009 Board decision denied entitlement to service connection for hypertension. The Veteran was notified of that decision, but did not initiate an appeal or file a motion for reconsideration. 4. The evidence received since November 2009, when considered by itself or in connection with evidence previously assembled, does not relate to unestablished facts necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim of service connection for hypertension. CONCLUSIONS OF LAW 1. The April 2003 rating decision, which denied the Veteran’s claim of entitlement to service connection for respiratory disorder, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103. 2. The additional evidence received since the April 2003 rating decision is new and material and therefore the claim for entitlement to service connection for respiratory disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The November 2009 Board decision, which denied the Veteran’s claim of entitlement to service connection for hypertension, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1100. 4. The additional evidence received since the November 2009 Board decision is not new and material and therefore the claim for entitlement to service connection for respiratory disorder is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to May 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2014, the Veteran requested a Board hearing by videoconference. See December 2014 Form 9. However, in a September 2017 statement in support of claim, the Veteran withdrew his hearing request. No subsequent hearing request has been received. Accordingly, the Veteran’s request for a hearing is withdrawn. Since the December 2014 statement of the case, additional evidence has been received. This evidence is not relevant to the Veteran’s claim for entitlement to service connection for hypertension. Procedural History The Veteran’s claims for entitlement to service connection for hypertension and respiratory disorder were initially denied in an April 2003 rating decision. The RO denied the Veteran’s claim for respiratory disorder because the medical evidence of record failed to show that the disability had been clinically diagnosed. See April 2003 Rating Decision Narrative. The Veteran did not appeal his claim for respiratory disorder. Further, no new evidence was received until June 2004, more than one year after the rating decision. Accordingly, as it relates to the Veteran’s claim for entitlement to service connection for a respiratory disorder, the April 2003 rating decision is final. 38 C.F.R. § 20.1103. Regarding the Veteran’s clam for entitlement to service connection for hypertension, the Veteran perfected an appeal to the Board. Following a September 2007 remand, a Board decision was issued in November 2009 denying the Veteran’s claim. The Board found that the competent evidence failed to demonstrate that hypertension is causally related to active service or any service-connected disability. See November 2009 BVA Decision. The Veteran did not appeal this decision to the Court of Appeals for Veteran’s Claims (CAVC) or file a motion for reconsideration. Accordingly, this decision is final. 38 C.F.R. § 20.1100. Legal Standard To reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Whether new and material evidence has been received to reopen the claim for entitlement to service connection for respiratory disorder. In the April 2003 rating decision, the Veteran’s claim for service connection for respiratory disorder was denied based on no evidence of a current disability. See April 2003 Rating Decision. March 2012 treatment records note a diagnosis of asbestosis. See April 2012 CAPRI at 19. The Veteran also requires the use of a CPAP machine. See August 2017 CAPRI at 10. As this evidence relates directly to establishing a current respiratory disability, a fact necessary to substantiate the claim, this matter is reopened. The Veteran’s claim for entitlement to service connection for a respiratory disorder is discussed further in the Remand portion of this decision. Whether new and material evidence warrants reopening of the claim for service connection for hypertension. The record does not establish new and material evidence to warrant reopening of the Veteran’s claim for hypertension. The Veteran contends that his hypertension is secondary to his service-connected posttraumatic stress disorder (PTSD). See May 2012 Statement in Support of claim. In the November 2009 Board decision, the Board found that there was no evidence that the Veteran’s disability was incurred in service or caused or aggravated by a service-connected disability. Since the Board’s November 2009 decision, several documents have been added to the record. These documents consist of lay statements, treatment records, and VA examinations. With respect to lay statements, the Veteran contends that his psychiatrist at VAOPC Mobile annotated in his records that his service-connected PTSD could be the cause of his hypertension. See May 2012 Statement in Support of Claim. Treatment records from VAOPC have been received, however there is nothing in the record which indicates that the Veteran’s hypertension is caused by his PTSD. Further, there is nothing to suggest that there are outstanding medical records. The Veteran reported that he received all his treatment through VA, and the record contains VA treatment records through 2018. See May 2012 Statement in Support of Claim. Accordingly, the record does not substantiate the Veteran’s contentions. With respect to VA examinations, the Veteran was afforded several examinations throughout the period at issue for various disabilities. Overall, these examinations do not relate to an unestablished fact necessary to substantiate the Veteran’s hypertension claim. The Veteran underwent a VA examination in November 2010 for his heart. The examiner noted that the Veteran’s history of atrial fibrillation is related to the Veteran’s hypertension, alcohol abuse and tobacco use. The examiner made no other findings with respect to the Veteran’s hypertension. See November 2010 VA Examination at 2. In July 2011 the Veteran underwent an audiological VA examination. The examination is not related to the Veteran’s hypertension and hypertension was not addressed. The Veteran was afforded an examination for his PTSD in April 2011. This examination did not address hypertension. See April 2011 VA Examination. The Veteran was afforded January 2018 VA examination for his heart. The examiner made no findings related to the etiology of the Veteran’s hypertension. See September 2018 C&P Exam. Evidence also includes newly received treatment records. Psychiatry records from October 2009 through November 2010 note that the Veteran has hypertension but do not indicate that his hypertension is related to his PTSD. See November 2010 Medical Treatment Records. Subsequent treatment records continue to note a diagnosis of hypertension. See April 2012 CAPRI, August 2017 CAPRI. However, December 2012 treatment records note that the Veteran’s hypertension is resolved, with no antihypertensive therapy needed. See August 2017 CAPRI at 146. Subsequent December 2013 treatment records note ongoing monitoring of the Veteran’s blood pressure. See August 2017 CAPRI at 62. More recent 2017 records note diagnosis of benign essential hypertension. See September 2018 CAPRI at 7. However, December 2017 treatment notes characterize the Veteran’s hypertension as stable. See September 2018 CAPRI at 72. The Board notes that some of the treatment records added to the file since November 2009 predate the November 2009 Board decision. The Board has reviewed these documents and finds that they are duplicative of treatment records already in the file before the Board decision. Ultimately, the new evidence received since the final 2009 Board decision is not material. To be material, the evidence must relate to an unestablished fact necessary to substantiate the claim and raise a reasonable possibility that the claim will be granted. The Veteran contends that his psychiatrist indicated that his hypertension could be caused by PTSD. However, the record does not support his contentions. VA examinations do not contain any opinions or findings regarding the etiology of the Veteran’s hypertension. Finally, while the new treatment records continue to note the Veteran’s hypertension, nothing in the record raises a reasonable possibility that the Veteran’s hypertension is related to his PTSD. In fact, while September 2018 treatment records show ongoing prescription medication for PTSD, as of December 2012, the Veteran’s hypertension is noted as benign with no need for antihypertensive therapy. See September 2018 CAPRI at 8, see also August 2017 CAPRI at 146. Based on a review of the record, the Board finds that the new evidence received since the November 2009 Board decision is not material. Therefore, reopening is not warranted. REASONS FOR REMAND Entitlement to service connection for a respiratory disorder. As discussed above the Veteran’s claim for entitlement to service connection for respiratory disorder has been reopened. The evidence of record shows a currently diagnosed disability of asbestosis and a prescribed CPAP machine. The record contains no evidence regarding the etiology of the Veteran’s respiratory disability. Moreover, in the November 2012 rating decision the RO declined to reopen the Veteran’s claim for entitlement to service connection for respiratory disorder. The RO should develop the claim, to include ascertaining from the Veteran how he was exposed to asbestos during service. The matter is REMANDED for the following action: The RO should develop the claim for a respiratory disability, to include asbestosis. The RO should identify how the Veteran believes he was exposed to asbestos, and develop accordingly. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Wimbish, Associate Counsel