Citation Nr: 18154333 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-53 612 DATE: November 29, 2018 ORDER New and material evidence to reopen the claim for entitlement to service connection for hypertension has not been received; thus the claim to reopen is denied. New and material evidence to reopen the claim for entitlement to service connection for diabetes mellitus has not been received; thus the claim to reopen is denied. Entitlement to an effective date prior to August 31, 2015, for the assignment of a 10 percent disability evaluation for a surgical scar is denied. FINDINGS OF FACT 1. In a May 2006 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for hypertension and diabetes mellitus. That claim was appealed in June 2006, but was again denied by the Board of Veterans’ Appeals (Board) in a decision from November 2008. 2. Presuming its credibility, the evidence received since the November 2008 Board Decision, by itself or in conjunction with previously considered evidence does not relate to an unestablished fact necessary to substantiate the claim for entitlement to service connection for either hypertension or diabetes mellitus. 3. The Veteran was granted service connection for her surgical scar at a compensable rating of 0 percent by a Board of Veterans’ Appeals (Board) decision on December 2, 2008. The Veteran filed an increased ratings claim which was received by the RO on August 31, 2015. That claim was granted, and the Veteran’s service-connected scar was granted at a 10 percent disability rating from August 31, 2015. It was not factually ascertainable that the surgical scar evinced the requisite symptomatology for a 10 percent rating within the year preceding August 31, 2015. CONCLUSIONS OF LAW 1. The additional evidence received since the November 2008 Board decision is not new and material to the claim for entitlement to service connection for hypertension, therefore the claim remains denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The additional evidence received since the November 2008 Board decision is not new and material to the claim for entitlement to service connection for diabetes mellitus, therefore the claim remains denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. An effective date earlier than August 31, 2015, for a 10 percent rating for a surgical scar is not warranted. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from April 1973 to December 1982. The matter is before the Board on appeal from an October 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen the claim before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). The question of whether new and material evidence has been received to reopen such a claim must be addressed in the first instance by the Board, because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson, 265 F.3d 1366; see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff’g 8 Vet. App. 1 (1995). 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for hypertension and/or for diabetes mellitus. Applicable law provides that a claim which is the subject of a prior final decision may be reopened upon presentation of new and material evidence. See 38 C.F.R. § 3.156 (2017). The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is irrelevant. Barnett, 83 F.3d at 1383. Thus, the Board will proceed in the following decision to adjudicate new and material issues in the first instance. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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) (2017). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). With regard to the new and material evidence submitted for the Veteran’s original claim for service connection for hypertension, the original claim was denied in May 2006 based on the findings of a VA examiner who opined that the current condition of hypertension could not be shown to have occurred in or was caused by military service. The Veteran appealed that decision in June 2006, but that claim was subsequently denied by the Board in November 2008. The Veteran did not appeal the Board’s November 2008 decision and the decision became final effective the date of that decision in November 2008. 38 U.S.C. § 4005 (c); 38 C.F.R. §§ 3.104, 19.118, 19.153. In October 2010, the Veteran filed a petition to reopen her claim for entitlement for service connection for hypertension. In a January 2011 rating decision, the AOJ considered the Veteran’s petition and denied the Veteran’s petition to reopen this claim. The AOJ denied the Veteran’s petition on the basis that the evidence submitted is not new and material in that it does not relate to an unestablished fact necessary to substantiate the claim and/or does not raise a reasonable possibility of substantiating the claim. Again, in an August 2015 application for disability compensation and related compensation benefits, the Veteran attempted to reopen the claim for hypertension. In an October 2015 rating decision, the AOJ reconsidered the Veteran’s petition and again denied the Veteran’s petition to reopen this claim. The AOJ denied the Veteran’s petition on the same basis: that the evidence submitted is not new and material in that it does not relate to an unestablished fact necessary to substantiate the claim and/or does not raise a reasonable possibility of substantiating the claim. Since the November 2008 Board decision, the Veteran submitted lay statements from August 2015, private medical treatment records from the Rex Healthcare facility from August 2015, a VA Contract Examination from QTC Medical Services from October 2015, and various medical records from the VA Medical Center in Durham, North Carolina between March 2011 and October 2015. As stated, the Veteran’s previous claim for entitlement to service connection for hypertension was denied since it could not be demonstrated that the current diagnosis of hypertension had incurred in or was related to military service. To succeed in reopening the claim based on new and material evidence, evidence must be received that, by itself or when considered with previous evidence of records, relate to an unestablished fact necessary to substantiate the Veteran’s claim. Therefore, for the evidence to be new and material, it must plausibly demonstrate that the diagnosis of hypertension was incurred in or was related to military service. The submitted medical evidence does not relate to an unestablished fact necessary to substantiate the Veteran’s claim. The private medical examination from the UNC Hospital from December 2015 mentions a history of hypertension, yet that information does not go to establishing a nexus between the current diagnosis and the Veteran’s military service. The private medical examination from Rex Healthcare found a current diagnosis of hypertension, but made no mention of a nexus opinion. In May 2014, the Womack Army Medical Center found a history of hypertension, but could not relate the diagnosis to the Veteran’s military service. This was repeated by the VA Medical Center in Durham, which examined the Veteran between March 2011 and October 2015 and could not establish a link between the Veteran’s service and her current diagnosis of hypertension. The same can be said for reopening the claim of entitlement to service connection for diabetes mellitus based on new and material evidence. The original claim was denied in May 2006 based on the findings of a VA examiner who opined that the current condition of diabetes mellitus could not be shown to have occurred in or was caused by military service. The Veteran appealed that decision in June 2006, but that claim was subsequently denied by the Board in November 2008. The Veteran did not appeal the Board’s November 2008 decision and the decision became final effective the date of that decision in November 2008. 38 U.S.C. § 4005 (c); 38 C.F.R. §§ 3.104, 19.118, 19.153. Since the November 2008 Board decision, the Veteran submitted lay statements in August 2015, private medical treatment records from the Rex Healthcare facility from August 2015, a VA Contract Examination from QTC Medical Services from October 2015, and various medical records from the VA Medical Center in Durham, North Carolina between March 2011 and October 2015. As stated, the Veteran’s previous claim for entitlement to service connection for diabetes mellitus was denied since it could not be demonstrated that the current diagnosis of diabetes mellitus had incurred in or was related to military service. To succeed in reopening the claim based on new and material evidence, evidence must be received that, by itself or when considered with previous evidence of records, relate to an unestablished fact necessary to substantiate the Veteran’s claim. Therefore, for the evidence to be new and material, it must plausibly demonstrate that the diagnosis of diabetes mellitus was incurred in or was related to military service. The submitted medical evidence does not relate to an unestablished fact necessary to substantiate the Veteran’s claim. The private medical examination from the UNC Hospital from December 2015 mentions a current diagnosis of diabetes, yet it does not go to establishing a nexus opinion between the current diagnosis and the Veteran’s military service. The Rex Healthcare private facility makes no mention of a nexus for diabetes. The Womack Army MC could not relate diabetes to the Veteran’s service in May 2014, and the same can be said about the VA Medical Center in Durham during examinations taking place between March 2011 and October 2015. This evidence was not of record at the time of the initial decision, yet it does not relate to facts necessary to support the Veteran’s claims. The evidence submitted is cumulative and redundant, and does not raise a reasonable possibility of substantiating the claims. The criteria for reopening the Veteran’s claims have not been met. 38 C.F.R. § 3.156(a). New and material evidence to reopen the claim for entitlement to service connection for hypertension and service connection for diabetes mellitus have not been received. Therefore, the appeal remains denied. 2. Entitlement to an effective date prior to August 31, 2015, for the assignment of a 10 percent disability evaluation for a surgical scar. Generally, the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. If it is factually ascertainable that the disability increased within one year preceding the date of claim for the increased rating, the effective date of increased compensation will be the date the disability increased within that year. 38 C.F.R. § 3.400 (o)(2). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. §§ 3.1(p); 3.155. Any communication indicating an intent to apply for a benefit under the laws administered by VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file which may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In Roper v. Nicholson, 20 Vet. App. 173 (2006), the Court held that effective dates for both primary and secondary conditions are governed by 38 C.F.R. § 3.400, which provides that the effective date is the later of the date the condition arose or the date a veteran applied for benefits. In this case, the Veteran was granted service connection for her surgical scar at a compensable rating of 0% by a Board decision on December 2, 2008. The Veteran filed an increased ratings claim, due to pain from residuals of the scar, which was received by the RO on August 31, 2015. That claim was granted, and the Veteran’s service connected scar was granted at a 10% disability rating from August 31, 2015. Again, the effective date of a compensation award based on a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. Since the date of the receipt of the claim is later than the date that the entitlement arose, the effective date must be based on the date that the claim was received by the RO. The date that the claim was received by the RO was August 31, 2015, so as a matter of law, the Veteran’s entitlement to the 10% disability rating for her service-connected scar is set at August 31, 2015. As mentioned, if it is factually ascertainable that the disability increased within one year preceding the date of claim for the increased rating, the effective date of increased compensation will be the date the disability increased within that year. The Board notes that the Veteran has claimed that pain occurred in her surgical scar before the August 2015 date. There is however no evidence to suggest that the disability increased within one year preceding the date of claim for increased rating – August 31, 2014 – therefore an earlier effective date based on this type of claim would not be factually ascertainable within the year preceding the date the claim was received. Therefore, as a matter of law, this case turns on the date of claim rather than the date that pain may have first occurred. Therefore, entitlement to an effective date prior to August 31, 2015, for the assignment of a 10 percent evaluation for a surgical scar is denied. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Garrett H. Mulrain, Associate Counsel