Citation Nr: 18161323 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 16-34 027 DATE: December 31, 2018 ORDER New and material evidence has not been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder and depression, to include as secondary to service connected status post right inguinal hernia repair. Entitlement to service connection for hypertension is denied. FINDINGS OF FACT 1. Service connection was denied by an unappealed rating action of October 2011. The Veteran was notified and did not appeal. Evidence received since that final rating action is cumulative and redundant and provides no possible basis of substantiating the claim. 2. Although the Veteran has a diagnosis of hypertension, it was not first shown and/or diagnosed within one year of separation from service and, the evidence does not indicate that the disability may be associated with an event, injury, or disease in service. CONCLUSIONS OF LAW 1. New and material evidence has not yet been received since the last final rating action denying service connection for an acquired psychiatric disorder to include, bipolar and disorder, to include as secondary to service connected status post right inguinal hernia repair. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (2018). 2. The criteria for Entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had a period of active duty service from March 1974 to March 1976. New and Material Evidence VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is new and material. That analysis is undertaken by comparing newly received evidence with the evidence previously of record. Here, it is concluded that the evidence received is not new and material. For the singular purpose of determining whether new and material evidence has been submitted that is sufficient to reopen a claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for Veterans Claims (the Court) has endorsed a low threshold standard for reopening a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). At the time of the prior final rating decision in October 2011, the Veteran’s evidence consisted of STRs revealing normal psychiatric health at discharge; post-service treatment records noting a diagnosis of major depressive disorder; a lay statement in support of his claim that his psychiatric disorder is due to his military service; and, the report of an August 2011 VA examination that provided diagnoses of PTSD, bipolar depression, and chronic alcoholism. However, the evidence of record failed to establish that the Veteran’s diagnosed psychiatric disorders are attributable to his military service. As such, the October 2011 rating decision denied the claim on that basis. The Veteran filed a petition to reopen this claim in January 2013. Since the last final rating decision, the Veteran has submitted private and VA outpatient treatment records repeatedly diagnosing the Veteran with bipolar disorder, major depressive disorder, PTSD, and chronic alcoholism. However, there are no etiological opinions relating the Veteran’s psychiatric disorders to his military service or to his service-connected inguinal hernia repair. The evidence in the claims file reveals that the Veteran had no complaints, diagnosis, or treatments for a psychiatric disorder until approximately twenty years after his separation from service. This evidence is not new and material. The evidence submitted since the October 2011 denial does not raise the possibility of substantiating an unestablished fact necessary to pursue the claim. Accordingly, the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, bipolar disorder, and depression, to include as secondary to service connected status post right inguinal hernia repair is not reopened. Service Connection 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 (2012); 38 C.F.R. § 3.303 (2018). “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”—the so-called “nexus requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). For Veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases may be presumed to have been incurred in service if they manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). Heart disease is on the list of diseases presumed to have been incurred in-service. Pursuant to 38 C.F.R. § 3.303(b) (2018), where a chronic disease is shown in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service, but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) (2018) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) (2012) or 38 C.F.R. § 3.309(a) (2018). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, a preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran asserts that his hypertension is related to his time in service as evidenced from a January 2013 Application for Compensation or Pension where he asserts that he began receiving treatment for hypertension in March 1976 while stationed in Germany. STRs reveal no complaints, diagnosis or treatments for hypertension in-service. Following his separation from service in 1976, an April 1996 VA outpatient treatment records reveal treatment for alcohol dependency, but there is no diagnosis of hypertension. VA outpatient treatment records from January 2012 first show a diagnosis of hypertension and note treatment with medication. In an April 2013 statement in support of the claim the Veteran reported taking medication for hypertension, hydrochlorothiazide, 12 mg, by mouth every morning. He also reported taking Lisinopril every day for hypertension. Although the Veteran has a current diagnosis of hypertension, this diagnosis occurred approximately 37 years after service. As noted above, there are no STRs that diagnose the Veteran with hypertension in service, and the VA and private treatment records after his discharge do not provide a diagnosis until 2012. Further, there is no etiological opinions in the claims file that attribute his hypertension to his military service. The Board also reviewed the Veteran’s lay statements that his hypertension was connected to events which occurred in-service. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to hypertension, as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1) (2018). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 4.3 (2018). T. BERRY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Elliot Harris, Associate Counsel