Citation Nr: 18156813 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 15-07 623 DATE: December 11, 2018 ORDER 1. New and material evidence sufficient to reopen the claim of entitlement to service connection for asthma has not been received, and the application for reopening the claim is denied. 2. Entitlement to service connection for hypertension is denied. FINDINGS OF FACT 1. In a November 1994 rating decision, the Regional Office (RO) denied service connection for asthma based on a finding that the Veteran had no diagnosis of asthma. The Veteran was informed of the decision in a December 1994 notification letter that included his appeal rights. He did not appeal the decision and did not submit new and material evidence within one year of the decision. The November 1994 rating decision is final. 2. Evidence received since the November 1994 rating decision does not relate to a previously unestablished fact necessary to substantiate the claim of entitlement to service connection for asthma, and therefore does not raise a reasonable possibility of substantiating the claim. 3. The preponderance of the evidence is against a finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of hypertension. CONCLUSIONS OF LAW 1. The November 1994 rating decision denying the claim of entitlement to service connection for asthma is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103. 2. New and material evidence sufficient to reopen the previously denied claim of entitlement to service connection for asthma has not been added to the record. 38 U.S.C. § 5108, 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Air Force from January 1977 to April 1994. New and Material Evidence—Generally Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c). However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers, while 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. 38 C.F.R. § 3.156(a). 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. 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 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Regardless of the RO’s determination as to whether new and material evidence has been received, the Board must address the issue of whether new and material evidence has been received in the first instance because it determines the Board’s jurisdiction to reach the underlying claim and to adjudicate the claim de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran’s claim on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. 1. Whether new and material evidence has been presented sufficient to reopen a claim for entitlement to service connection for asthma In May 1994, the Veteran filed a claim for service connection for asthma, and did not submit any other evidence in connection with this claim. In a November 1994 rating decision, the RO denied service connection for asthma based on a finding that the Veteran had no diagnosis of asthma. At the time of this rating decision, the record did not show any relevant evidence in support of the claim. The Veteran was informed of the decision in a December 1995 notification letter that included his appeal rights. The Veteran did not appeal this decision, and no additional evidence pertinent to the issue was associated with the claims folder within one year of the decision. See 38 C.F.R. § 3.156(b). Thus, the November 1994 rating decision became final based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Since the November 1994 final rating decision, no evidence relevant to the claim has been added to the file. In August 2012, the Veteran submitted an application to reopen his claim for entitlement to service connection for asthma. The record does not show any statements or other evidence submitted in support of this application to reopen. The Board finds that no new evidence in support of a claim of entitlement to service connection for asthma has been added to the record. What was lacking in November 1994 was a current diagnosis of asthma. That diagnosis still has not been established. For example, there are medical records dated November 2010, January 2011, and February 2011 that show a list of “Problems,” which are “chronic,” which included a list of more than 20 medical problems, and asthma was not included on this list. The Board acknowledges the representative’s request in the October 2018 informal hearing presentation that a VA examination for asthma be provided. However, the VA must provide a VA examination only when there is: (1) competent evidence of a current disorder or persistent or recurrent symptoms of a disorder; and, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and, (3) an indication that the disorder, or persistent or recurrent symptoms of a disorder, may be associated with the Veteran’s active military service or with another service-connected disability; but, (4) insufficient competent medical evidence on file for the VA Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, there is no competent and credible evidence of an asthma diagnosis, symptoms of asthma, or an in-service injury or event that would cause asthma. The Veteran is not competent to diagnose asthma, as asthma is a complex medical diagnosis and the Veteran has not been shown to possess the necessary skills and training to render a complex medical diagnosis. The record does not show competent and credible evidence of asthma and does not show persistent or recurrent symptoms of asthma along with evidence establishing an event, injury, or disease and an indication that the disorder or persistent or recurrent symptoms may be associated with the Veteran’s service. Therefore, a VA examination is not warranted. Given that the evidence submitted since the prior November 1994 final rating decision is not both new and material, the application to reopen the Veteran’s claim of entitlement to service connection for asthma is denied. 38 U.S.C. § 5108. Service Connection – Generally Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Where a Veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Hypertension is a chronic disease. The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran’s claim on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). 2. Entitlement to service connection for hypertension The Veteran claims he has hypertension, which he believes is related to service. Under VA regulation, hypertension must be confirmed by readings taken two or more times on at least three different days. Regulation also clarifies that the term “hypertension” means that the diastolic blood pressure is predominantly 90 mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, DC 7101. Additionally, in order for hypertension to be considered disabling to a compensable degree, the evidence must show that diastolic pressure is predominantly 100 or more, or that systolic pressure is predominantly 160 or more, or that the individual has a history of diastolic pressure of predominantly 100 or more and requires continuous medication for control. 38 C.F.R. § 4.104, DC 7101. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of hypertension and has not had one at any time during the pendency of the claim. In the absence of a current disability, the Veteran fails to meet the first element of a claim for service connection. On an October 1993 report of medical history, the Veteran’s checked “Yes” to the question “Have you ever had or have you now high or low blood pressure.” On a November 1993 report of medical history created a few months prior to the Veteran’s separation from service, the Veteran’s blood pressure was noted to be 135/71. This tends to show that the Veteran did not have hypertension during service. Other documentation in the Veteran’s file also tends to show that the Veteran did not have hypertension during service. For example, a May 1981 record of medical care notes that the Veteran’s blood pressure was 120/68. A January 1982 record of emergency care and treatment notes that the Veteran’s blood pressure was 120/60. A June 1982 report shows a reading of 110/70, a June 1984 report shows a reading of 116/76, a May 1987 report shows a reading of 106/72, and a March 1989 report shows a reading of 106/68. Following service, the preponderance of the evidence is against a finding that the Veteran has been diagnosed with hypertension. For example, when the Veteran was completing a medical form in 2001 (the date of the record is not on the document, but the Veteran wrote he was 46 years old), when asked, “Have you had or ever had high blood pressure/hypertension,” the Veteran circled, “No.” A June 2010 record of medical treatment shows that the Veteran’s blood pressure was 124/62, and another reading later that same day shows blood pressure of 112/65. November 2010, January 2011, and February 2011 medical records show a list of “Problems,” which are “chronic,” which included a list of more than 20 medical problems, and hypertension was not included on this list. All of the above tends to show that the Veteran has not had and does not have a current diagnosis of hypertension. While the Veteran believes he has a current diagnosis of hypertension, he is not competent to provide a diagnosis in this case, as he has not been shown to possess the expertise or training necessary to render a complex medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, which does not show a diagnosis of hypertension. For all the reasons laid out above, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for hypertension on a direct basis and on a presumptive basis. Thus, as the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim is denied. 38 U.S.C. § 5107(b). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Caruso, Associate Counsel