Citation Nr: 21075103 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 19-27 606 DATE: December 17, 2021 ORDER New and material evidence was not received and the application to reopen a claim for service connection for diabetes mellitus is denied. A rating greater than 10 percent for hypertension is denied. FINDINGS OF FACT 1. In a July 1998 decision, the Board denied a claim of service connection for diabetes mellitus; the Veteran did not appeal this decision. 2. The material added to the record after the July 1998 Board decision does not include evidence that relates to an unestablished fact necessary to substantiate the claim or that is more than cumulative or redundant of that previously considered. 3. The Veteran's hypertension requires continuous medication for control. His hypertension is not shown to be productive of diastolic pressure readings that are predominantly 110 or more, or systolic pressure predominantly 200 or more. CONCLUSIONS OF LAW 1. The July 1998 Board decision that denied service connection for diabetes mellitus is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100. 2. The evidence received after the July 1998 Board decision denying service connection for diabetes mellitus is not new and material and the claim is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. 3. The criteria for a rating greater than 10 percent for hypertension have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.104 Diagnostic Code 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1976 to March 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July and August 2018 rating decisions issued by RO. In his September 2019 Substantive Appeal, the Veteran requested a Board hearing at the RO. The Veteran's Board hearing was scheduled for September 21, 2021. The Veteran failed to appear for his scheduled hearing, offered no argument for this failure to appear, and did not otherwise request to have his hearing rescheduled. Accordingly, his hearing request is withdrawn 38 C.F.R. § 20.704 (d). In a March 2018 rating decision, a 40 percent rating for the service-connected hypertension was reduced to 10 percent, effective July 1, 2018. In a statement received in March 2019, filed on VA Form 21-4138 (Statement in Support of Claim), the Veteran "contests" the reduction of the rating for his hypertension. To the extent that the Veteran disagrees with the rating reduction, the Board cannot accept this March 2019 statement as a Notice of Disagreement (NOD) because it was not filed on the proper form. See 38 C.F.R. § 20.202 (a) (A Notice of Disagreement must be properly completed on a form prescribed by the Secretary). The proper form prescribed by the Secretary for a NOD is VA Form 21-0958. Thus, a claim challenging the propriety of the hypertension rating reduction is not currently before the Board on appeal and the only issue on appeal is entitlement to a rating greater than 10 percent for hypertension (See July 2018 rating decision). 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for diabetes mellitus Generally, a claim that has been denied in an unappealed RO decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that 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. Under the law applicable to this matter, 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. 38 C.F.R. § 3.156(a). The provisions of 38 C.F.R. § 3.156(a) create a low threshold for the reopening of claims. The Court of Appeals for Veterans Claims (Court) noted that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, does not require new and material evidence as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). For establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board denied the Veteran's claim of service connection for diabetes mellitus in a July 1998 rating decision. The Board noted that the Veteran reported that he was treated for diabetes within one year of his discharge from service but determined the earliest records of treatment for diabetes mellitus were dated many years after his discharge from service and no records indicated that the Veteran's diabetes mellitus was related to service. The Board noted that one record reflected that the diabetes mellitus had onset several years after the Veteran's discharge from service, reporting that a June 1988 private treatment record reflected that the Veteran had a history of having diabetes for only 6 years. The Board found that the Veteran's report that he was told by a physician that he had diabetes mellitus within one year of separation from service, standing alone, was insufficient to find the diabetes mellitus was etiologically related to service. Thus, the Board found that there was no competent evidence demonstrating the current diabetes mellitus was related to service and concluded that service connection for diabetes mellitus was not warranted. The evidence in July 1998 included the service treatment records; post-service treatment records (including the June 1988 private treatment record that reflects the Veteran had a history of diabetes mellitus for 6 years); the May 1992 VA examination report (documenting diagnosis of insulin dependent diabetes mellitus); a June 1992 private treatment record from the Veteran's treating physician indicating that despite the Veteran's reported history of being told he was diabetic in 1979, there were no medical records transferred from a previous physician confirming a diagnosis of diabetes in 1979; and various lay statements from the Veteran reporting he was told he had diabetes within a year of his discharge from service. The Veteran was informed of this decision, but he did not appeal the Board decision. Therefore, the July 1998 Board decision is final. 38 C.F.R. § 20.1100. In June 2018, the Veteran requested that his claim be reopened. The evidence received since the July 1998 Board decision includes lay statements submitted by the Veteran asserting that his diabetes mellitus is etiologically related to his period of service, including suggestion that his diabetes mellitus onset due to exposure to contaminated water while he was stationed at Camp LeJeune. Also received are additional medical records, confirming the diagnosis of diabetes mellitus. The statements are cumulative in nature and repetitive of his previous assertions. To the extent that the Veteran suggests that his diabetes mellitus onset due to exposure to contaminated water while he was stationed at Camp LeJeune, the Board notes that diabetes mellitus is not a disability for which the presumptive provisions apply. See 38 C.F.R. § 3.309 (f). Moreover, the additional medical records, that confirm the diagnosis of diabetes mellitus, contain no etiology opinion linking the diabetes mellitus to a period of service, including exposure to the contaminated water supply at Camp LeJeune. Thus, this additional evidence does not constitute material evidence suggesting that the Veteran's diabetes had its onset during service due to disease or injury then sustained. See generally Morton v. Principi, 3 Vet.App. 508 (1992); Mingo v. Derwinski, 2 Vet.App. 51 (1992) (observing that evidence of a claimant's current condition is not generally relevant to the issue of service connection, absent some competent linkage to military service). The lack of a nexus to service is the basis for this continued denial of his claim. For these reasons, the Board finds that new and material evidence has not been presented to reopen the Veteran's previously denied claim of service connection for diabetes mellitus. 2. Entitlement to a rating greater than 10 percent for hypertension Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Separate Diagnostic Codes (DC) are used to evaluate the disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The rating for the Veteran's hypertension has been assigned pursuant to Diagnostic Code 7101. See 38 C.F.R. § 4.104. A 10 percent rating is warranted for hypertension manifested by diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is assigned for hypertension manifested by diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent rating is assigned for hypertension manifested by diastolic pressure predominantly 120 or more. A 60 percent rating is assigned for hypertension manifested by diastolic pressure predominantly 130 or more. The January 2017 VA examination report reflects that the Veteran's blood pressure readings were 176/107, 169/100 and 170/98; his average blood pressure reading was 171/101. The examiner indicated that the Veteran's treatment plan included taking continuous medication for his hypertension or isolated systolic hypertension and documented that the Veteran was prescribed amlodipine, lisinopril, clonidine, and hydrochlorothiazide for the treatment of his hypertension. The examiner indicated that the Veteran had a history of diastolic blood pressure elevation to predominantly 100 or more and reported that since August 2011, 10 of 32 blood pressure readings reflected a diastolic reading greater than 100. The May 2018 VA examination report reflects that the Veteran's blood pressure readings were 166/102, 171/92 and 169/89; his average blood pressure reading was 168/94. The examiner indicated that the Veteran's treatment plan included taking continuous medication for his hypertension or isolated systolic hypertension and documented that the Veteran was prescribed clonidine, amlodipine, and lisinopril for the treatment of his hypertension. The examiner indicated that the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more. A June 2018 VA treatment record reflects that the Veteran's blood pressure reading was 150/80. A December 2018 statement from the Veteran's treating physician reflects that his hypertension has been difficult to control. A December 2018 VA treatment record reflects that the Veteran's blood pressure reading was 156/75. A March 2019 VA treatment record reflects that the Veteran's blood pressure reading was 180/104. The Veteran requires continuous medication for control of his hypertension. The manifestations of his hypertension (history of diastolic pressure predominantly 100 or more that requires continuous medication for control) is adequately contemplated by the assigned 10 percent rating for his hypertension. The Veteran has not demonstrated blood pressure readings manifested by diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more during the appeal period. Therefore, a rating greater than 10 percent is not warranted. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Jackson The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.