Citation Nr: 21021063 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 15-24 575 Why change caor hills DATE: April 9, 2021 ORDER The petition to reopen the claim of entitlement to service connection for hypertension based on the submission of new and material evidence is denied. The petition to reopen the claim of entitlement to service connection for pulmonary sarcoid (suspected) based on the submission of new and material evidence is denied. FINDINGS OF FACT 1. An April 1971 rating decision denied the claim for service connection of hypertension. 2. The Veteran did not appeal the denial of the issue, and the decision became final regarding the claim. 3. New evidence received since the final April 1971 rating decision, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the underlying claim of service connection for hypertension and does not raise a reasonable possibility of substantiating that claim. 4. In a May 1972 decision, the Board of Veterans’ Appeals denied service connection for a pulmonary sarcoid (suspected) based on a finding that the sarcoid clearly and unmistakably preexisted service and was not aggravated by military service. 5. The Veteran did not appeal the Board of Veterans’ Appeals decision, and it is a final decision of the claim. 6. New evidence received since the final May 1972 Board decision, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim of service connection for pulmonary sarcoid (suspected) and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The April 1971 rating decision is final respect to the issue of service connection for hypertension. 38 U.S.C. §§ 511, 5104, 5108, 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103. 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for hypertension. 38 U.S.C. §§ 501, 5103A, 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156, 20.1103. 3. The May 1972 Board decision is final with respect to the issue of service connection for pulmonary sarcoid (suspected). 38 U.S.C. §§ 511, 5104, 5108, 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103. 4. New and material evidence has not been received to reopen the claim of entitlement to service connection for pulmonary sarcoid (suspected). 38 U.S.C. §§ 501, 5103A, 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on Active Duty for Training (ACDUTRA) in the U.S. Army from December 1970 to February 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in February 2020. In correspondence dated March 2020, the Veteran was notified of “audio malfunctions heard throughout your testimony” and offered “the opportunity to testify at another hearing per 38 C.F.R. § 20.717.” See March 2020 VA Correspondence. In a reply dated April 2020, the Veteran responded, “Video Hearing held on 2/13/2019 At 8:30 AM…Check Your Records.” See April 2020 Veteran Correspondence. The Board considers the hearing request made by the Veteran in his Substantive Appeal as withdrawn. See July 2015 VA Form 9, Substantive Appeal. While the Veteran began his appeal under the legacy appeals system with a July 2014 Notice of Disagreement, he submitted an “Election” form in January 2018 indicating a desire to participate in the Rapid Appeals Modernization Program (RAMP). See January 2018 RAMP Opt-In Election Correspondence. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law created a new framework for Veterans dissatisfied with a VA decision on their claim to seek additional review. On the January 2018 “Election” form, the Veteran selected the “Higher-Level Review” option for participation under the AMA system. See January 2018 RAMP Opt-In Election Correspondence. The Veteran did not complete a VA Form 20-0996, Decision Review Request: Higher-Level Review, and the RO took no further action pursuant to the January 2018 “Election” form. In January 2021, the RO requested clarification from the Veteran on his desire to pursue an appeal under the AMA system. A response was requested from the Veteran “60 days from the date of this letter.” See January 2021 BVA Letter. To date, the Veteran has not responded to this request. The Board considers the January 2018 request for participation in the AMA system as withdrawn. The appeal is now before the Board for consideration on the available evidence of record. New and Material Evidence The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. See 38 U.S.C. § 7104(b); King v. Shinseki, 23 Vet. App. 464 (2010); DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions). Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously part of the actual record before 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 cannot 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 for purposes of deciding whether a claim should be reopened, “the credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992); Savage v. Gober, 10 Vet. App. 488 (1997). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). 1. Whether new and material evidence has been submitted to reopen the claim for service connection of hypertension. The Regional Office (RO) denied service connection for hypertension in April 1971 based on a finding that the Veteran’s hypertension was a pre-existing condition and was not aggravated in-service. See April 1971 VA Rating Decision. In the year following the decision, the Veteran did not submit any statements expressing disagreement with the denial of service connection for hypertension, nor did he submit any documents concerning the claim of service connection for hypertension that could be considered new and material evidence. 38 C.F.R. §§ 3.156 (b), 20.302. Therefore, the April 1971 decision became final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The pertinent evidence of record in April 1971 consisted of the Veteran’s service treatment records and military personnel records, which included Medical Board Proceedings. The evidence indicated that the Veteran was diagnosed and treated for hypertension prior to service. The Veteran did not contest the findings of the Medical Board, nor did he present any evidence on his behalf. The recommendation of the Medical Board was for the Veteran to be “returned to duty for separation for erroneous enlistment.” See February 1971 Medical Board Proceedings. Evidence received since the April 1971 rating decision consists of a letter from a private physician stating, “(Veteran) is being treated for Hypertension.” See July 1971 Dr. M.J.S. Letter. Additional evidence consists of letters from private physicians which state, “(Veteran) is a patient who is under my care for high blood pressure,” and, “(Veteran) had regular visits and complete physicals [sic] which includes blood pressure and cholesterol monitoring.” See October 2013 and February 2019 Ocean County Family Care, P.A., Letters and October 2013 Dr. L.R. Internal Medicine Letter. Another letter from a private physician recorded, “(Veteran) is currently on…Divan for hypertension.” See November 2007 A.M.L, Allergy and Asthma Letter. An additional private physician letter noted, “(Veteran) is a 63-year old gentleman with hypertension.” See June 2010 Lenox Hill Heart and Vascular Institute of New York Letter. Yet another private physician letter reflected, “We have treated (Veteran) for hypertension.” See November 2013 Allentown Medical Associates Letter. A final letter from a private physician listed, “Cardiac risk factors: hypertension.” See November 2014 Shore Heart Group Letter. The Veteran also submitted a statement from his spouse relating, “I’m married to (Veteran) since 1975…has been under a doctor’s care for high blood pressure the entire time I am married to him.” See February 2019 Buddy / Lay Statement. An additional statement from the Veteran’s sister was provided, “(Veteran) was being treated by Dr. M.J.S. since he was 13 years old for High Blood Pressure.” See February 2019 Buddy / Lay Statement. Based on the material received into the record, new and material evidence has not been produced to reopen a claim of service connection for hypertension. While the private treatment records and lay statements are new, they are not material to the claim. The treatment records continually note that the Veteran’s current diagnosis and treatment that relates to hypertension. There is no evidence, medical or otherwise, indicating that the Veteran’s hypertension, which was pre-existing, worsened during or because of service. See January 1971 Medical Board Narrative Summary (“Patient was found to be hypertensive in 1961, that is at the age of 14.”). By itself or when considered with the evidence previously of record, none of the evidence submitted since April 1971 relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for hypertension and does not raise a reasonable possibility of substantiating the claim. See 38 U.S.C. §§ 501, 5103A(f), 5108; 38 C.F.R. § 3.156(a). Therefore, the Board finds that new and material evidence has not been received to reopen the claim of service connection for hypertension. The requirements to reopen this claim have not been met, and the appeal must be denied. Until the Veteran meets his threshold burden of submitting new and material evidence sufficient to reopen his claim, the benefit of the doubt doctrine does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Whether new and material evidence has been submitted to reopen the claim for service connection of pulmonary sarcoid (suspected). In a May 1972 decision, the Board denied service connection for a pulmonary sarcoid (suspected), based on findings that “Sarcoidosis clearly and unmistakably preexisted service.” See May 1972 Board decision. The Veteran did not appeal the Board decision; thus, it is the last final disallowance of the claim. The evidence of record at the time of the May 1972 Board decision included: the Veteran’s service treatment records, which included chest X-rays dated December 1970 and January 1971; a statement from the Veteran’s private physician with “no clinical findings;” and a statement from the Veteran that he wanted service connection “so that if his disability increased [sic] he could receive treatment for it from (VA).” The Veteran served approximately 11 days before the sarcoid was discovered. The December 1971 chest X-ray revealed a nodule whose size “indicate(s) that the disability preexisted service.” The Board found, “There was no increase in the preservice level of the disability during the Veteran’s service.” Evidence received since the April 1971 rating decision consists of a letters from a private physician, which indicated: 1) a 1969 chest X-ray “showed normal heart, mediastinal, pulmonary and bony tissues;” 2) “(Veteran) still has X-ray evidence of Boeck’s Sarcoid, first discovered while he was on military duty;” 3) “(Veteran) is presently under my care for Boeck’s Sarcoid;” and 4) (Veteran) was not aware of the fact he had Boeck’s Sarcoid…I therefore conclude that his problem is in some way connected with his stay in the service.” See May and July 1971, April 1972, and April 1975 Dr. M.J.S. Letters. Additional evidence includes a March 2019 chest X-ray, which demonstrated “no active disease” and a March 2019 pulmonary examination, which documented “[n]o obstructive lung defect.” See March 2019 Toms River X-ray, CT & MRI Center Report and Ocean Pulmonary Associates, P.A., Patient Visit Note. The Board concludes the foregoing evidence is duplicative of evidence considered at the time of the prior Board decision and would not reasonably substantiate the claims, were they to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Accordingly, new and material evidence to reopen the claim for service connection for a pulmonary sarcoid (suspected) condition has not been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Until the Veteran meets his threshold burden of submitting new and material evidence sufficient to reopen his claim, the benefit of the doubt doctrine does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Small, Attorney Advisor 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.