Citation Nr: 21062767 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 20-29 530 DATE: October 12, 2021 ORDER As new and material evidence has not been received, the previously denied claim of service connection for a back injury is not reopened. As new and material evidence has not been received, the previously denied claim of service connection for bipolar disorder is not reopened. As new and material evidence has not been received, the previously denied claim of service connection for headaches is not reopened. As new and material evidence has not been received, the previously denied claim of service connection for hypertension is not reopened. FINDINGS OF FACT 1. The record evidence shows that, in a rating decision issued in July 2016, the Agency of Original Jurisdiction (AOJ) denied, in pertinent part, the claims of service connection for a back injury, bipolar disorder, headaches, and for hypertension; although the Veteran timely disagreed with this decision, she did not perfect a timely appeal and it became final. 2. The evidence received since July 2016 is either cumulative or redundant of evidence previously submitted in support of the claims of service connection for a back injury, bipolar disorder, headaches, and for hypertension. CONCLUSIONS OF LAW 1. The July 2016 rating decision, which denied the Veteran's claims of service connection for a back injury, bipolar disorder, headaches, and for hypertension, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2020). 2. Evidence received since the July 2016 rating decision in support of the claims of service connection for a back injury, bipolar disorder, headaches, and for hypertension is not new and material; thus, these claims are not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from May 2001 to March 2003. She also had additional unverified U.S. Army Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which denied the Veteran's request to reopen previously denied service connection claims for a back injury, bipolar disorder, headaches, and for hypertension. A virtual Board hearing was held in July 2021 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. The Board observes that, in a July 2016 rating decision, the RO denied, in pertinent part, the Veteran's claims of service connection for a back injury, bipolar disorder, headaches, and for hypertension. Although the Veteran timely disagreed with this decision, she did not perfect a timely appeal and it became final. See 38 U.S.C. § 7104 (2012). She also did not submit any relevant evidence or argument within 1 year of the July 2016 rating decision which would render it non-final for VA adjudication purposes. See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156 (b)). The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the issues of whether new and material evidence has been received to reopen claims of service connection for a back injury, bipolar disorder, headaches, and for hypertension are as stated on the title page. Regardless of the RO's actions, the Board must make its own determination as to whether new and material evidence has been received to reopen these claims. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board finds that the preponderance of the evidence is against granting the Veteran's request to reopen her previously denied claims of service connection for a back injury, bipolar disorder, headaches, and for hypertension. The Board notes initially that claims of service connection may be reopened if new and material evidence is received. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran requested that these claims be reopened in statements on a VA Form 21-526EZ date-stamped as received electronically by VA on May 1, 2018. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). With respect to the Veteran's application to reopen the previously denied service connection claims for a back injury, bipolar disorder, headaches, and for hypertension, the evidence before VA at the time of the prior final AOJ decision in July 2016 consisted of her service treatment records, post-service VA and private treatment records, and lay statements. The RO found that this evidence showed no medical nexus between her back injury and active service. It also concluded that there was no diagnosis of bipolar disorder or hypertension which could be attributed to service. It finally determined that there was no evidence that she experienced headaches during service which could be linked to any current disability. Thus, all of the claims were denied. The Veteran disagreed with this decision in statements on a VA Form 21-0958 which was date-stamped as received electronically on September 7, 2016. The RO subsequently promulgated a Statement of the Case (SOC) on these claims in January 2018. She did not perfect a timely appeal and the July 2016 rating decision became final. The newly received evidence still does not show that there is a medical nexus between the Veteran's back injury and active service. It also still does not show that she experienced headaches during active service. And there still is no diagnosis of hypertension which could be attributed to service. The Board acknowledges that there are multiple diagnosis of bipolar disorder in the newly received evidence; however, as a VA clinician opined in February 2018, the Veteran does not meet the diagnostic criteria for a diagnosis of bipolar disorder because there is no evidence that she experienced manic or hypomanic episodes which would support this diagnosis. This determination is consistent with a review of the newly received VA outpatient treatment records which shows that she denied experiencing mania (or manic episodes) to multiple VA treating clinicians. More importantly, the February 2018 VA clinician opined that it was less likely than not that the claimed bipolar disorder is related to active service. This opinion was fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The newly received evidence also shows that her blood pressure routinely was within normal limits in recent years. The Board notes that the Court held in Shade v. Shinseki, 24 Vet. App. 110 (2010), that the phrase "raises a reasonable possibility of substantiating the claim" found in the post-VCAA version of 38 C.F.R. § 3.156(a) must be viewed as "enabling" reopening of a previously denied claim rather than "precluding" it. All of the newly received evidence is presumed credible solely for the limited purpose of reopening the previously denied claim. See Justus, 3 Vet. App. at 513. With respect to the Veteran's request to reopen his previously denied service connection claims for a back injury, bipolar disorder, headaches, and for hypertension, the Board finds that there is no reasonable possibility that the newly received evidence would enable rather than preclude reopening any of these claims. Unlike in Shade, there is no new evidence in this case either previously considered in the July 2016 rating decision or received since that decision became final which demonstrates that a back injury is related to active service or any incident of service. There also is no evidence that the Veteran currently experiences bipolar disorder or hypertension which could be attributed to service. And there finally is no evidence that she experienced headaches during active service. Thus, the analysis of new and material evidence claims that the Court discussed in Shade is not applicable to the Veteran's request to reopen the previously denied service connection claims for a back injury, bipolar disorder, headaches, and for hypertension. In summary, as new and material evidence has not been received, the previously denied claims of service connection for a back injury, bipolar disorder, headaches, and for hypertension are not reopened. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.