Citation Nr: 21024585 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 19-05 285 DATE: April 23, 2021 ORDER New and material evidence not having been received, the claim to reopen the issue of entitlement to service connection for hypertension (also claimed as due to herbicide exposure) is denied. FINDING OF FACT 1. In a May 2009 rating decision, VA denied entitlement to service connection for hypertension. The appellant neither appealed this decision nor submitted new and material evidence within the one-year appeal period. 2. The evidence received since the May 2009 rating decision is new, but it does not relate to a previously unestablished fact necessary to substantiate the service connection claim for hypertension and it does not raise a reasonable possibility of changing the prior outcome. CONCLUSION OF LAW The May 2009 rating decision is final; new and material evidence has not been received to reopen the claim of entitlement to service connection for hypertension. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1965 to January 1969, and earned a Vietnam Service Medal. This matter was adjudicated by the Board of Veterans’ Appeals (Board) in a February 2020 decision , which was appealed by the Veteran to the Court of Appeals for Veterans Claims (CAVC). In December 2020, CAVC granted a Joint Motion for Remand (JMR) in which the parties agreed that the Board erred in not fully addressing arguments regarding a Privacy Act Request raised by the Appellant’s representative in a January 2020 letter. The matter has been returned to the Board pursuant to the JMR. In the January 2020 letter, the Veteran’s representative stated that they had not yet received the requested documents and asked that the record be held open for 90 days following the receipt of the requested documents. The January 2020 letter (which included the Veteran’s requests), was uploaded to the Veteran’s electronic file approximately two weeks later at the end of January 2020, prior to the Board’s February 2020 denial of this appeal. In his December 2020 Appellant’s Brief, the Veteran acknowledged that he had since received a copy of the requested documents and asked that the record be held open an additional 90 days. In January 2021, the Veteran submitted a Waiver of Opportunity to Submit Additional Evidence or Argument, indicating that he had no additional evidence or argument to submit, and waived any remaining time to submit additional evidence or argument. Finality In a May 2009 rating decision, the RO denied entitlement to service connection for hypertension. The Veteran was provided notice of that decision and of his right to appeal. However, neither a timely appeal nor new and material evidence were received within one year of that decision. Hence, the May 2009 rating decision is final. 38 U.S.C. § 7105. New and Material Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108. New evidence means existing 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). For purposes of determining whether to reopen a claim, the credibility of the recently submitted evidence will be presumed. Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam). In determining whether new and material evidence has been received sufficient to reopen a claim, there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA’s duty to obtain a VA examination. Id. at 118. If VA determines that new and material evidence has been added to the record, the claim is reopened, and VA must evaluate the merits of an appellant’s claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991). Here, the RO denied service connection for hypertension in May 2009 because the Veteran provided no evidence showing that hypertension was in any way related to his service (including in-service Agent Orange exposure) or onset within one year of separation from service. The decision was based on service treatment records and private treatment records. In November 2014, the Veteran requested that the claim for hypertension be reopened. Evidence received since the May 2009 rating decision includes VA treatment records. While these treatment records continue to show a diagnosis of hypertension, the records fail to show a nexus between this disability and the Veteran’s service (including in-service herbicide exposure)—or an onset of his hypertension within one year from service separation. Notably, in July 2018, VA asked the Veteran to provide medical evidence that his hypertension is due to dioxin exposure. No evidence was provided. In his December 2020 Brief, the Veteran referenced a “2018 Veterans and Agent Orange Update,” wherein the Institute of Medicine of the National Academies of Sciences, Engineering, and Medicine determined that there is “sufficient evidence of an association” between hypertension and herbicide exposure. The Veteran argued that, because of this update, there is now sufficient evidence of an association between hypertension and herbicide exposure and that the claim should therefore be reopened so that this evidence can be considered in the Veteran’s claim and trigger VA’s duty to assist in providing the Veteran an examination. A copy of the 2018 Veterans and Agent Orange Update article was not provided with the Brief, nor was it submitted into the claims file at any time. In addition, while the representative argues that this update suggests an association between herbicide exposure and hypertension, this is insufficient to reopen the claim, because VA has not changed the regulations concerning diseases presumed to be associated with herbicide exposure. See 38 C.F.R. § 3.307, 3.309. Further, as a general matter, articles that are general in nature and do not specifically relate to the facts and circumstances surrounding a particular case have minimal probative value. See Sacks v. West, 11 Vet. App. 314, 317 (1998) (noting that treatise materials generally are not specific enough to show nexus). While such evidence, if provided, would be new, it would not be material as it would not offer evidence that this Veteran’s hypertension was related to presumed herbicide exposure during active service. Consequently, the Board finds that the treatise evidence does not raise a reasonable possibility of substantiating the claim for service connection and does not relate to an unestablished fact necessary to substantiate the claim. In this case, the application to reopen the issue of entitlement to service connection for hypertension is denied. Since the May 2009 denial, the Veteran has provided treatment records reflecting treatment for diagnosed hypertension. However, there is no medical evidence linking his hypertension to service (including in-service herbicide exposure) or reflecting a diagnosis of hypertension within one year of service. The evidence continues to be cumulative and does not raise a reasonable possibility of substantiating the claim. Therefore, the claim for service connection for hypertension is not reopened, and this appeal is denied. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.E. Lee 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.