Citation Nr: 18150678 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 15-44 847 DATE: November 15, 2018 ORDER The petition to reopen the claim of entitlement to service connection for hypertension is denied. Entitlement to service connection on a secondary basis for the residuals of a cerebrovascular accident (CVA) (claimed as stroke) is denied. FINDINGS OF FACT 1. Service connection for hypertension was denied in a December 2000 Board decision. 2. Evidence received since the December 2000 Board decision is not new and material, and does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for hypertension. 3. The Veteran’s residuals of a CVA were not caused or aggravated by a service-connected disorder; the residuals of a CVA did not originate in service and are not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria to reopen the claim of service connection for hypertension have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). 2. The criteria for service connection for cerebrovascular accident (CVA), have not been met. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1963 to May 1966, with additional service in the United States Army Reserve. These matters come before the Board on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). Although the Veteran initially requested a DRO hearing on his substantive appeal in connection with the instant appeal, in December 2016 he withdrew his request for such a hearing. New and Material Evidence Generally, a claim that has been finally denied in an unappealed RO decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means 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). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decision makers, and it is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The United States Court of Appeals for Veterans Claims interprets the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Veteran filed his original claim of entitlement to service connection for hypertension in October 1988. This claim was subsequently denied in a February 1989 rating decision. A subsequent October 1994 rating decision continued the denial of service connection; the Veteran appealed neither decision, and they are final. Thereafter, a December 2000 Board decision declined to reopen the claim. The Veteran next filed a claim to reopen the matter in March 2014. At the time of the December 2000 Board denial, the record consisted of his own statements, including his December 1993 claim and 1996 testimony. Both statements have already been considered in the previous February 1989 rating decision. The Board also considered service treatment records that showed the veteran’s blood pressure reading of over 138/110 as early as 1982, and that the Veteran had a diagnosis of hypertension in 1992. These records also revealed that he received medication for hypertension as early as 1987, albeit intermittently. The Veteran also submitted copies of reserve service personnel records, which showed that he was not qualified for service in 1994, due to severe hypertension with left cerebrovascular accident (which occurred in August 1993). However, the records do not indicate that the Veteran’s hypertension manifested or aggravated during a period of active service or active duty for training. Thus, the records were not considered ‘material.’ Since the December 2000 Board denial, the Board finds that the Veteran has not submitted any new and material evidence. Service treatment records submitted in 2007 by the Veteran only show a notation of high blood pressure on his report of medical history. The records failed to support the Veteran’s contentions that he developed hypertension during the period of his active service. Furthermore, a separation examination dated March 1966 reported normal clinical findings regards to the Veteran’s blood pressure. The evidence is not considered to be new or material for the purpose of reopening the Veteran’s claim for service connection. 38 C.F.R. § 3.156. Even considering the holding in Shade v. Shinseki, 24 Vet. App. 110, to the effect that the VA regulation as to reopening a claim “must be read as creating a low threshold,” there is still a minimum threshold. It does not raise a reasonable possibility of substantiating the claim and does not reach the minimum threshold. As such, the claim is not reopened. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b). The Veteran contends that he suffered a stroke as a result of his hypertension. In support of his claim, the Veteran has submitted medical treatment records that shows an occurrence of a cerebrovascular accident in August 1993. The Veteran has not asserted, nor does the record reflect that his claimed cerebrovascular accident first manifested during his period of active service. The Board acknowledges that the Veteran’s treatment records post service reflects an occurrence of a stroke. However, given the earlier decision which reflects that the Veteran is not service connected for hypertension, there is no legal basis upon which to award service connection for his stroke, which is claimed as secondary to a disability that is not service connected. See 38 C.F.R. § 3.310. Service connection is not in effect for any disability. As there is there is no factual or legal merit to the secondary service connection claims, service connection on a secondary basis is denied. (Continued on the next page)   In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel