Citation Nr: 20021296 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 16-34 356 DATE: March 25, 2020 ORDER New and material evidence having not been received, the previously denied claim of entitlement to service connection for high blood pressure is not reopened. New and material evidence having not been received, the previously denied claim of entitlement to service connection for a nervous condition is not reopened. Service connection for a heart disorder to include coronary artery disease (CAD) (also claimed as heart attack as secondary to high blood pressure) is denied. The appeal to reopen the claim for service connection for hiatal hernia is dismissed. FINDINGS OF FACT 1. Service connection for high blood pressure and a nervous condition were denied in a February 1996 Board decision. 2. An unappealed March 2001 decision declined to reopen service connection for high blood pressure and a nervous condition. 3. Evidence received since the March 2001 decision is new but does not substantiate a previously unestablished element or raise a reasonable possibility of substantiating the claims. 4. The preponderance of the evidence is against finding that the Veteran’s coronary artery disease had its onset during active service, or was caused or aggravated by a service-connected disability. 5. At the Board hearing before the undersigned Veterans Law Judge in July 2019, and prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal to reopen the claim for service connection for hiatal hernia. CONCLUSIONS OF LAW 1. New and material evidence having not been received, the criteria to reopen a previously denied claim of entitlement to service connection for high blood pressure have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence having not been received, the criteria to reopen a previously denied claim of entitlement to service connection for nervous condition have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a heart disorder to include coronary artery disease have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for dismissal of the claim for service connection for hiatal hernia have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1971 to May 1972. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. Unfortunately, a complete hearing transcript was unable to be obtained due to audio malfunctions with the recording system. In October 2019, the Veteran was notified of such and given the opportunity to testify at another Board hearing. However, in October 2019 correspondence, the Veteran stated that he did not wish to appear at another hearing. Finally, the Veteran waived AOJ consideration of the evidence he associated with the file following certification of the appeal to the Board in written correspondence sent in August 2019. New and Material Evidence 1. The appeal to reopen the claim for service connection for high blood pressure is denied. 2. The appeal to reopen the claim for service connection for nervous condition is denied. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. See 38 U.S.C. § 5108; Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Id. at 117. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for high blood pressure and a nervous condition was denied in a February 1996 Board decision on the basis that neither condition was shown in service and a causal nexus was not shown. Board decisions are final when issued. 38 U.S.C. § 7104. The Veteran sought to reopen his claim in March 2000. In a March 2001 rating decision, the RO declined to reopen the claim on the basis that new and material evidence was not submitted. The Veteran submitted a statement in March 2001 regarding the duty to assist; the Board finds that this statement does not constitute notice of disagreement. As no new and material evidence was received within a year of the rating decision, it became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302, 20.1103. The Veteran attempted to reopen his claims in September 2013 and in March 2014. The October 2014 rating decision on appeal declined to reopen the claims on the basis that new and material evidence was received. The evidence in the file at the time of the last final rating decision included service treatment records, VA medical records, lay statements from the Veteran, and private medical records. Since then, additional VA and private medical records have been received. In August 2019, the Veteran submitted a July 2019 letter from the SSA indicating that his folder has been destroyed. The Veteran also submitted some records from the SSA, presumably from his personal possession. Records from the Princeton Hospital also were unable to be obtained and the Veteran was notified of such. Upon review, the Board finds new and material evidence, sufficient to warrant reopening, has not been submitted. The newly received evidence continues to reflect that the Veteran has high blood pressure and psychiatric diagnoses. The evidence does not, however, suggest or establish that these conditions onset in service or are etiologically related to service. In short, the evidence does not raise a reasonable possibility of substantiating the claim. For these reasons, reopening the previously denied claims is not warranted. Service Connection 3. Service connection for a heart disorder to include CAD (also claimed as heart attack as secondary to high blood pressure) is denied. The Veteran asserts that his coronary artery disease is due to his high blood pressure/uncontrolled hypertension. See VA 21-4142 received by VA September 2013; September 2013 VA 21-4138. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The questions for the Board are: (1) 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 and (2) whether the Veteran has a current disability that is proximately due to or the result of, or was aggravated beyond its natural progress by a service-connected disability. The Board concludes that, while the Veteran has a current diagnosis of coronary artery disease, the preponderance of the evidence weighs against finding that the condition began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records are silent for diagnosis, complaints, or treatment for coronary artery disease or a chronic heart condition. In a November 1971 Report of Medical History, the Veteran denied pain or pressure in chest and palpitation or pounding heart. The November 1971 examination at separation showed no abnormality of the heart. After service, treatment records show the Veteran complained of chest tightness with hypertension in February 1993. The Veteran was diagnosed with severe three vessel coronary artery disease with non-ST-elevated myocardial infarction in May 2010. The record contains no medical opinions regarding linking the Veteran’s heart disorder to an in-service injury, event, or disease. To the extent the Veteran generally asserts his condition is related to service, he is not competent to do so. The issue is medically complex, as it requires knowledge of the cardiovascular systems and interpretation of complicated diagnostic medical testing. Therefore, it is outside his competence because the record does not show he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). As a heart condition was not shown as chronic in service; and coronary artery disease (or other chronic heart disease) did not manifest to a compensable degree within a one-year period following separation from service; and was not noted in service (or within an applicable presumptive period) with continuity of symptomatology thereafter- service connection is not established on a presumptive basis or under a theory of chronicity and continuity. Finally, with respect to the theory of secondary service connection, the Board concludes that service connection is not warranted. As the Board has denied reopening the claim for service connection for high blood pressure, service connection may not be granted a matter of law for coronary artery disease as secondary to high blood pressure. See 38 C.F.R. § 3.310. The Veteran is not service connected for any other disability. The preponderance of the evidence weighs against the Veteran’s claim for a chronic heart condition to include coronary artery disease. As such, the benefit of the doubt doctrine does not apply, and service connection is not warranted. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 4. Service connection for hiatal hernia is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.205. Withdrawals are effective as of the date they are received. When a claim is withdrawn, it ceases to exist. Hanson v. Brown, 9 Vet. App. 29, 32 (1996). In the present case, the Veteran withdrew this issue during his July 2019 Board hearing. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as it relates to this issue and it is dismissed. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Vuong, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.