Citation Nr: 18148908 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-55 139 DATE: November 8, 2018 ORDER 1. The application to reopen a claim of entitlement to service connection for hypertension is denied. 2. Service connection for bilateral kidney cysts as secondary to a service connected disability is denied. REMANDED 3. Entitlement to service connection for a lung disorder, to include as due to exposure to asbestos, is remanded. FINDINGS OF FACT 1. The Veteran did not appeal the October 1995 rating decision denying entitlement to service connection for hypertension after being notified of appellate rights. 2. Evidence received since the October 1995 rating decision does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for hypertension. 3. Bilateral kidney cysts were not incurred in service, caused by or otherwise related to service; or shown to be caused by or aggravated by a service connected disability. CONCLUSIONS OF LAW 1. The October 1995 rating decision is final. New and material evidence has not been received to reopen the claim of entitlement to service connection for hypertension. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.1103 (2017). 2. The criteria for service connection for bilateral kidney cysts as secondary to a service connected disability, have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1971 to October 1985. 1. Whether new and material evidence has been received to reopen the previously-denied claim of entitlement to service connection for hypertension. Prior unappealed decisions of the Regional Office (RO) are final. 38 U.S.C. §§ 7105(c); 38 C.F.R. §§ 3.160(d), 20.302(a), 20.1103. The Board does not have jurisdiction to consider a claim that has become final before it determines that new and material evidence has been presented, irrespective of what the regional office may have determined with respect to new and material evidence. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). If, however, new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or 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. Id. New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof; the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Entitlement to service connection for hypertension was denied in an October 1995 rating decision. In a letter dated later that month, the Veteran was notified of the denial and his appellate rights. In the one-year appeal period that followed, the Veteran submitted neither a notice of disagreement nor any additional evidence. This rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. The October 1995 rating decision denied service connection for hypertension because it was not shown that it was incurred in or caused by service, or manifested to a degree of 10 percent disabling within one year of service discharge. The evidence before VA at the time of the October 1995 rating decision included service treatment records (STRs) and private treatment records including a March 1991 treatment records that established a current diagnosis of hypertension. It also included a May 1995 lay report from the Veteran that he had high blood pressure in 1980-1985 in service, and an August 1995 VA examination where he reported “that he had always been borderline hypertensive, but approximately four years ago he was begun on mediation.” The VA examiner diagnosed current hypertension. VA treatment records and private medical records have been associated with the file since the October 1995 rating decision, which reflect continued complaints and treatment for hypertension. However, the additional evidence is not material, as it is cumulative and redundant. Specifically, it shows the already-established element of current disability, and reiterates the Veteran’s contention that “[d]uring my time in service, I developed hypertension.” See March 2013 letter. In the October 2016 VA Form 9, he confirmed the report that “My blood pressure levels were registering in the borderline hypertensive range during my last year of active military service, and getting increasingly higher.” The new evidence does not raise a reasonable possibility of showing that hypertension was incurred in service or manifested to a degree of 10 percent disabling within one year of service discharge. Accordingly, the Board finds that new and material evidence has not been received to reopen the claim of entitlement to service connection for hypertension. Therefore, the application to reopen the previously-denied claim is denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. Service connection for bilateral kidney cysts as secondary to a service connected disability. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 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). Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In a March 2013 statement, the Veteran requested disability compensation for cysts on his bilateral kidneys due to hypertension. He asserted that he developed hypertension in service and that severe hypertension caused problems with his kidneys. The Veteran does not contend or offer evidence to support that bilateral kidney cysts are related to service in any way other than as secondary to hypertension. Nor does the record raise this theory. The Board will limit its analysis to the theory advanced by the Veteran. Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008). Service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310(a) (2017). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. The Veteran’s claim of entitlement to service connection for hypertension was denied in an October 1995 rating decision and the application to reopen the claim of entitlement to service connection for hypertension is denied herein; therefore, the claimed bilateral kidney cysts cannot be granted on a secondary basis as hypertension is not a service-connected disability. The claim must be denied. REASONS FOR REMAND 3. Entitlement to service connection for a lung disorder, to include as due to exposure to asbestos is remanded. In asbestos-related claims, VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service or, post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the Veteran. See VAOPGCPREC 4-2000 (April 13, 2000), published at 65 Fed Reg. 33,422 (2000); Ashford v. Brown, 10 Vet. App. 120, 123-24 (1997) (finding that VA must follow development procedures specifically applicable to asbestos-related claims). In a March 2013 statement, the Veteran asserted that while in the military he flew in Saudi Arabia where he was exposed to asbestos and had suffered upper lung problems since that time. The Veteran also contended that asbestos exposure may have occurred in service performing duties and training exercises in an October 2016 substantive appeal (VA Form 9). A May 2013 private medical record reflects that a computed tomography (CT) scan of the chest performed in January 2013 showed evidence of extensive asbestosis and that Veteran has had a CT scan dating back to 2000/2005 which showed pleural plaques that were consistent with asbestos exposure. An April 2001 imaging report shows an impression of nodular pleural partially calcified thickening in both lung bases which suggests asbestos exposure. In April 2014, the RO sent the Veteran a letter asking him to provide additional information with respect to his alleged asbestos exposure. The Veteran responded in May 2014 by submitting additional medical records, to include the May 2013 private medical records discussed above. The requisite development pertaining to the Veteran’s claimed exposure of asbestos have not been fully performed. Further, the record includes partial private treatment records submitted by the Veteran which indicates that additional records may be outstanding. Therefore, the Board finds that a remand is required to associate any outstanding records and ensure that all necessary development is completed to ensure that the alleged asbestos exposure has been properly researched, to the extent possible. The Veteran should consider taking this opportunity to respond to the questions in the April 2014 letter to assist VA in developing his claim: •Where were you exposed to asbestos? (Organization, rank, task group, company or squadron, etc.) •When were you exposed? •How were you exposed? •What are the names of other service persons who were with you at the time of exposure? •What other things that may cause cancer (cigarettes, chemicals, etc.) were you exposed to while in service? After service? •What type of work did you do before service? What type of work have you been doing since service? Please state how long you did each job. The matter is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, related to treatment of his claimed lung disorder should be obtained. Any negative response should be in writing and associated with the claims file. In addition, obtain any outstanding VA treatment records and associate them with the claims file. 2. Undertake the developmental procedures to verify exposure to asbestos in service, to include in Saudi Arabia. See (i) VBMS entry with document type, “Correspondence,” receipt date 03/29/2013; (ii) VBMS entry with document type, “Form 9,” receipt date 10/24/2016. (Continued on the next page)   3. Thereafter, the AOJ should complete any development deemed necessary, to include scheduling an examination if warranted. LAURA E. COLLINS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cheng, Associate Counsel