Citation Nr: 20032544 Decision Date: 05/08/20 Archive Date: 05/08/20 DOCKET NO. 15-11 045 DATE: May 8, 2020 ORDER New and material evidence not having been received, the application to reopen a claim of entitlement to service connection for mitral insufficiency is denied. FINDINGS OF FACT 1. In an unappealed September 2008 rating decision, the RO denied the Veteran's claim of entitlement to service connection for mitral insufficiency. 2. The evidence received since September 2008 does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim for service connection for mitral insufficiency. CONCLUSIONS OF LAW 1. The September 2008 rating decision denying the claim of entitlement to service connection for mitral insufficiency is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. 2. The criteria for reopening a claim of entitlement to service connection for mitral insufficiency have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1954 to September 1959. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from an October 2013 rating decision, which denied the Veteran's attempt to reopen his claim of entitlement to service connection for mitral insufficiency. He perfected a timely appeal to that decision. In May 2018, the Board remanded the case to the RO for further evidentiary development. Following the requested development, a supplemental statement of the case (SSOC) was issued in March 2020. In his substantive appeal (VA Form 9), dated in March 2015, the Veteran requested a videoconference hearing. The record indicates that a hearing was scheduled for March 2018, but the Veteran failed to report for the scheduled hearing without explanation and has not requested a new hearing. As such, his hearing request is deemed withdrawn. See 38 C.F.R. §§ 20.702 (e); 20.704(e) (2018). Service Connection When a claimant fails to timely appeal an RO decision denying his claim for benefits, that decision becomes final and can no longer be challenged. See DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (Except as provided by law, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded.). However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material." Smith v. West, 12 Vet. App. 312 (1999). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what new and material evidence is, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for mitral insufficiency The Veteran initially filed a claim of service connection for mitral insufficiency (VA Form 21-526) in June 2007; the claim was denied in a rating action in September 2008. The evidence of record at the time of the September 2008 rating decision consisted of the Veteran's service treatment records (STRs). At the time of his enlistment examination in June 1954, the Veteran reported a history of rheumatic fever at a child at age 7 with normal recovery; clinical evaluation of the heart was normal. The STRs were silent for any complaints or treatment for a heart disease, including mitral insufficiency. Also considered were private treatment reports from Dr. Michael Hogan dated from September 2004 to November 2006 and a hospital report from Swedish/American Health System dated in October 2006. These records show that the Veteran was seen for evaluation of uncontrolled atrial fibrillation in September 2004. At that time, he reported being diagnosed with mitral insufficiency and atrial fibrillation back in 1990. He was diagnosed with atrial fibrillation, mitral valve disease and congestive heart failure. In statement in support of the claim (VA Form 21-4138), dated in December 2007, the Veteran reported having had rheumatic fever at the age of seven which weakened his heart; and, he stated that the hot and rainy weather in service damaged his heart valve. By a rating action in September 2008, the RO denied the claim for service connection for mitral insufficiency on the basis that there was no evidence of in-service treatment for a heart disability, and the claimed heart condition was not diagnosed within one year of the Veteran’s separation from service in September 1959. The Veteran was notified of the September 2008 decision and he did not perfect an appeal. The decision is therefore final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran’s request to reopen his claim of service connection for mitral insufficiency (VA Form 21-526b) was received in January 2013. The additional evidence received in support of his claim to reopen consists of several lay and buddy statements; the Application for Disability Compensation and Related Benefits received on January 24, 2014; a medical statement from Dr. Alvydas J. Baris; VA treatment records dated from July 2008 to October 2017; Examination for housebound status or regular aid and attendance; and Form 9 received on March 27, 2015. In light of the foregoing, the Board finds that none of the evidence obtained and made a part of the record since the RO's September 2008 decision relaters to whether the Veteran's mitral insufficiency was incurred in or caused by his active duty service. Moreover, the new medical records do not document any sort of nexus between the Veteran's current heart disorder to his active service; and records simply showing continued treatment for symptoms do not constitute new evidence and are therefore insufficient to reopen a claim. See Cornele v. Brown, 6 Vet. App. 59, 62 (1993) (medical evidence which merely documents continued diagnosis and treatment of disease, without addressing other crucial matters, such as medical nexus, does not constitute new and material evidence). Therefore, while the VA treatment reports, the private treatment records, and the Veteran's statements are new, they are not material as there is no information contained in them that indicates that the Veteran mitral insufficiency is or has ever been related to his active duty service. And, while Dr. Baris suggested that there’s a strong correlation between rheumatic fever and the need for valve surgery, he does not provide a nexus between mitral insufficiency and service. Additionally, there is no evidence of record which has suggested that the rheumatic fever was aggravated by service. The Board finds, then, that the new evidence associated with the claims file since the September 2008 rating decision does not relate to any unproven element of the previously denied claim. Based on the foregoing, the evidence received since the September 2008 rating decision is not material because it does not make a previously unestablished fact more likely to be established and it does not raise the possibility of reasonably substantiating the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. See Shade, 24 Vet. App. at 118. As new and material evidence to reopen the finally disallowed claim has not been submitted, the benefit of the doubt doctrine is not for application and the claim is denied. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.