Citation Nr: 20021929 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 17-37 381 DATE: March 27, 2020 ORDER Entitlement to service connection for chronic fatigue syndrome has been withdrawn. Entitlement to service connection for kidney stones has been withdrawn. The application to reopen the claim for service connection for hypertension is denied. FINDINGS OF FACT 1. At the January 2020 hearing, prior to the promulgation of a decision in the appeal, the appellant requested to withdraw the appeal for service connection for chronic fatigue syndrome. 2. At the January 2020 hearing, prior to the promulgation of a decision in the appeal, the appellant requested to withdraw the appeal for service connection for kidney stones. 3. In an unappealed June 2009 rating decision, the RO denied service connection for hypertension. 4. The evidence received since the June 2009 rating decision, by itself or in conjunction with previously considered evidence, does not relate to an unestablished fact necessary to substantiate the claim for service connection for hypertension. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for service connection for chronic fatigue syndrome by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for withdrawal of the appeal for service connection for kidney stones by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. The June 2009 rating decision denying service connection for hypertension is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. Since the April June 2009 rating decision, new and material evidence has not been received with respect to the Veteran’s claim of entitlement to service connection for hypertension; therefore, the claim is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2005 to August 2007. A hearing was held before the undersigned veterans law judge in January 2020 in Honolulu, Hawaii. The transcript is of record. During the hearing, the VLJ clarified the issues, asked if there was outstanding evidence and held the file open for the submission of evidence. Such actions comply with 38 C.F.R. § 3.103. Service Connection 1. Entitlement to service connection for chronic fatigue syndrome 2. Entitlement to service connection for kidney stones 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 or her authorized representative. Id. In the present case, the appellant has withdrawn the appeals for service connection for chronic fatigue syndrome and kidney stones and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals and they are dismissed. 3. The application to reopen the claim for service connection for hypertension In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as 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. See 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510,513 (1992).   In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court held that once new and material evidence has been presented as to an unestablished fact from a previously denied claim for service connection, the claimant will be entitled to the full benefits of the Secretary’s duty to assist, including a medical nexus examination, if one is warranted; it does not require new and material evidence as to each previously unproven element of a claim. In June 2009, the RO issued a rating decision denying service connection for hypertension due to a lack of nexus to service. The RO determined that the disability preexisted active service and was not aggravated by service. The Veteran did not appeal. That decision was final. At the time of the June 2009 rating decision, the evidence of record consisted of service treatment records showing elevated blood pressure readings both prior to and during active service and a medical opinion stating that hypertension was present before the Veteran began active service and was not aggravated during active service. The Veteran filed a an application in May 2014. The Veteran again submitted testimony indicating that he had elevated blood pressure readings during active service. However, such   evidence does not address the issue of whether his hypertension preexisted service or was aggravated by active service. Service treatment records showing elevated blood pressure readings during service were already of record at the time of the prior denial. Such evidence is redundant of the evidence of record at the time of the last prior final denial of the claim. Therefore, there is no new and material evidence, and the claim is not reopened. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Creegan 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.