Citation Nr: 9931307 Decision Date: 11/03/99 Archive Date: 11/17/99 DOCKET NO. 98-08 256A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for diabetes mellitus. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole R. Kammel, Associate Counsel INTRODUCTION The veteran served on active duty from March 1965 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which determined that new and material evidence had not submitted to reopen claims of entitlement to service connection for diabetes mellitus and hypertension. In November 1998, the veteran testified before the undersigned Board member before a traveling section of the Board at the RO in Cleveland, Ohio. FINDINGS OF FACT 1. An unappelaed October 1986 rating decision denied service connection for diabetes mellitus. 2. The evidence submitted since the October 1986 rating decision while new does not bear directly and substantially on the question of whether the veteran's current diabetes mellitus was incurred in or aggravated by service or was manifested within a year of discharge from service. 3. An unappealed May 1989 rating decision denied service connection for hypertension. 4. The evidence submitted since the May 1989 rating decision is new and bears directly and substantially on the question of whether the veteran's current hypertension was incurred in service. 5. There is competent medical evidence of a nexus between the veteran's current hypertension and elevated blood pressure readings shown during service. CONCLUSIONS OF LAW 1. The October 1986 rating decision denying service connection for diabetes mellitus is final. 38 U.S.C.A. § 7105(c) (West 1991). 2. Evidence received since the October 1986 rating decision is not new and material, and the veteran's claim for service connection for diabetes mellitus is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (1998). 3. The May 1989 rating decision denying service connection for hypertension is final. 38 U.S.C.A. § 7105(c) (West 1991). 4. Evidence received since the May 1989 rating decision is new and material, and the veteran's claim for service connection for hypertension is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (1998). 5. The claim of entitlement to service connection for hypertension is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Applicable laws and Regulations Under the law, in the context of this issues on appeal, service connection may be granted for any disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (1998). The Board notes that if a disorder is a specified chronic disease, service connection may be granted if it is manifested to a degree of 10 percent within the presumptive period following separation from service; the presumptive period for hypertension and diabetes mellitus is one year. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1998). Generally, a final decision issued by an RO or by the Board may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. §§ 7104, 7105(c) (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (1998). See also 38 U.S.C.A. § 7291 (West 1991) (setting forth the provisions for finality of Court decisions). The exception to this rule is 38 U.S.C.A. § 5108 (West 1991), which provides, in part, that "[i]f 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." See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). New and material evidence means evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a); See also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) (the evidence must merely "contribute to a more complete picture of the circumstances surrounding the origin of the veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision"). Further, when determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Where there is a prior unappealed rating decision, the claim may not be reopened and allowed, and a claim based on the same factual basis may not be considered, unless new and material evidence is presented. 38 U.S.C.A. § 7105(c) (West 1991). When a veteran seeks to reopen a final decision based on new and material evidence, a three-step analysis must be applied. The first step is to determine whether new and material evidence has been received under 38 C.F.R. § 3.156(a). Secondly, if new and material evidence has been presented, then immediately upon reopening the veteran's claim, the VA must determine whether the claim is well grounded under 38 U.S.C.A. § 5107(a). In making this determination, all of the evidence of record is to be considered and presumed to be credible. Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). Third, if the claim is found to be well grounded, then the merits of the claim may be evaluated after ensuring that the duty to assist under 38 U.S.C.A. § 5107(a) has been met. Elkins v. West, No. 97-1534 (U.S. Vet. App. February 17, 1999); Winters v. West, No. 97-2180 (U.S. Vet. App. February 17, 1999); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Board notes that, during the pendency of this appeal, the United States Court of Appeals for the Federal Circuit entered a decision in Hodge v. West, No. 98-7017 (Fed. Cir. September 16, 1998) which invalidated the United States Court of Appeals for Veterans Claims' (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court's) imposition of a third prong in the standard as to whether evidence is new and material, as set forth in Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). While the RO at one time in its review of this case applied the third prong used in Colvin, whether the evidence would create a reasonable possibility of a change in the outcome of the case, its use of the standard is not prejudicial to the veteran. As discussed by the United States Court of Appeals for the Federal Circuit in Hodge, the standard set forth in the regulatory language essentially represents a lesser burden than that imposed by Colvin. 38 C.F.R. § 3.156(a) (1998). As the application of Hodge represents a lesser burden for the veteran, the Board's application of Hodge, and thus its use of the standard set forth in 38 C.F.R. § 3.156(a) in the decision below will not prejudice the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). 1. Diabetes Mellitus In an October 1986 rating decision, the RO denied service connection for diabetes mellitus and informed the veteran of this decision in November 1986. No response was received from the veteran within one year of notification of this denial. See 38 C.F.R. § 20.302(a) (1998). As the veteran did not initiate an appeal of the October 1986 rating decision, that decision is final. 38 U.S.C.A. § 7105(c) (West 1991). As such, the evidence that must be considered in determining whether new and material evidence has been submitted in this case is that evidence added to the record since the October 1986 rating decision. Evidence that was of record at the time of the October 1986 decision denying service connection for diabetes mellitus were the veteran's service medical records, which were entirely negative for any subjective complaints or objective findings relating to diabetes mellitus, and numerous VA outpatient and private records, dating from 1970 to 1986, which reflect that the veteran was first diagnosed as having "questionable diabetes mellitus" during a VA hospitalization in September 1980, decades after he was discharged from service. Evidence received subsequent to the unappelaed October 1986 rating decision, denying service connection for diabetes mellitus, includes numerous private and VA medical evidence, dating from 1984 to 1999, and testimony from a November 1998 hearing before a traveling section of the Board at the RO in Cleveland, Ohio. Numerous private and VA medical records, dating from 1984 to 1999, reflect that that the veteran was diagnosed as having diabetes mellitus and that he was seen for complaints resulting therefrom. None of these medical reports, however, contain a medical opinion establishing an etiological relationship between the currently diagnosed diabetes mellitus to service or reflect that such disability was manifested within a year of discharge from service. During a November 1998 hearing before a traveling section of the Board at the RO in Cleveland, Ohio, the veteran testified that after service, from 1969 to the late 1980's, he had sought treatment from various VA and private facilities for his diabetes mellitus. In considering whether new and material evidence has been submitted to reopen a claim for service connection for diabetes mellitus, the Board has determined that the evidence added to the record since the October 1986 RO decision while new, as it was not of record at the time of the RO's decision, is not material. In reaching such conclusion, the Board observes that while the "new" evidence reflects that the veteran has been diagnosed as having diabetes mellitus, such records do not contain any medical opinion establishing an etiological link between such disability to service or reflect that it was manifested to a degree of 10 percent or more within a year of discharge from service in order to warrant service connection under 38 C.F.R. §§ 3.303, 3.307, 3.309 (1998). In this case, the Board observes that the veteran has submitted additional evidence in regard to his previously denied claim for service connection for diabetes mellitus. Nevertheless, this evidence is cumulative and redundant of evidence previously of record and does not bear "directly and substantially" on the question of whether diabetes mellitus was incurred during the veteran's active military service or show that diabetes mellitus was manifested within a within a year of discharge from service to a degree of 10 percent or more. As such, this evidence is not so significant that it must be considered in order to fairly decide the merits of the veteran's claim. Therefore, it is the conclusion of the Board that the veteran has not submitted new and material evidence to reopen his claim for service connection for diabetes mellitus. Furthermore, as the Board is not aware of the existence of additional relevant evidence that could serve to reopen the veteran's claim for service connection for diabetes mellitus, there is no further duty on the part of the VA under 38 U.S.C.A. § 5103(a) (West 1991) to notify him of the evidence required to complete his application. See McKnight v. Gober, 131 F.3d 1483, 1484-85 (Fed. Cir. 1997). In this regard, while the veteran testified at a November 1998 hearing before a traveling section of the Board that he had received treatment for his diabetes mellitus from 1969 to the 1980's from various VA and private facilities, a review of the record reflects that the RO has contacted all such facilities and that any and all records pertaining to the veteran from such facilities have been associated with the claims folder. 2. Hypertension In a May 1989 rating decision, the RO denied service connection for hypertension and informed the veteran of this decision in the same month. No response was received from the veteran within one year of notification of this denial. See 38 C.F.R. § 20.302(a) (1998). As the veteran did not initiate an appeal of the May 1989 rating decision, that decision is final. 38 U.S.C.A. § 7105(c) (West 1991). As such, the evidence that must be considered in determining whether new and material evidence has been submitted in this case is that evidence added to the record since the May 1989 rating decision. The additional evidence includes a May 1999 medical opinion, submitted by Craig N. Bash, M..D., Neuroradiologist, Board Certified Radiologist, which reflects the view that the in- service elevated blood pressure readings could not be dissociated from the subsequent diagnosis of hypertension in 1980 (a September 1980 VA hospitalization report reflects the first post-service diagnosis of high blood pressure.) The Board observes that this opinion is new to the record, and, in view of the standard for materiality set forth in Hodge, the Board finds that this new evidence bears directly and substantially on the question of whether the veteran's current hypertension is related to elevated blood pressure readings noted during service. Accordingly, the veteran's claim for service connection for hypertension is reopened. Having reopened the veteran's claim for service connection for hypertension, the Board observes that the next step following the reopening of the veteran's claim is consideration of the claim on a de novo basis. In Elkins v. West, 12 Vet. App. 209, 218-19 (1999), the United States Court of Appeals for Veterans Claims (Court) held that once a claim for service connection has been reopened upon the presentation of new and material evidence, the VA must determine whether, based upon all of the evidence of record, the claim is well grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991). Only after a determination that the claim is well grounded may the VA proceed to evaluate the merits of the claim, provided that the VA's duty to assist the veteran with the development of facts pertinent to his claim under 38 U.S.C.A. § 5107(a) (West 1991) has been fulfilled. See Winters v. West, 12 Vet. App. 203, 206-7 (1999); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Having reviewed the evidence of record, particularly the statement from Dr. Bash addressing the question of etiology of the veteran's hypertension, the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). In other words, the Board finds that the veteran's claim is plausible and, thus, capable of substantiation. ORDER New and material evidence not having been submitted, the application to reopen a claim of entitlement to service connection for diabetes mellitus, is denied. New and material evidence having been submitted to reopen a claim for service connection for hypertension, the claim is reopened. Evidence of a well-grounded claim for service connection for hypertension has been submitted, and to this extent, the appeal is granted. REMAND Furthermore, in view of the May 1999 statement submitted from Dr. Bash, described above, the Board finds that a medical opinion addressing the etiology of the veteran's current hypertension should be obtained after all available medical records have been obtained and associated with the claims file. Accordingly, in order to fully and fairly adjudicate the veteran's claim, this case is REMANDED to the RO for the following action: 1. The RO should contact the veteran and request that he identify specific names, addresses, and approximate dates of treatment for all health care providers, private and VA, from whom he has received treatment since service for his hypertension. When the requested information and any necessary authorization have been received, the RO should attempt to obtain copies of all pertinent records, which have not already been obtained. 2. Then, the RO should arrange for a VA examination, with the appropriate examiner, to review the veteran's entire claims file, particularly service medical records and the May 1999 opinion of Craig N. Bash, M.D.. The examiner should provide an opinion as to the etiology of the veteran's current hypertension and the etiology of the elevated blood pressure readings found in the service medical records. In this regard, the examiner should provide an opinion as to whether it is at least as likely as not that any current hypertension found on examination is etiologically related to the elevated blood pressure readings noted during service. A complete rationale should be given for all opinions and conclusions expressed. 3. The RO should then review the examination report to ensure that all actions requested by the Board have been accomplished, to specifically include an opinion as to whether or not any hypertension found on examinaiton is etiologically related to any elevated blood pressure readings noted during service. If not, the report should be returned to the examiner for completion, as United States Court of Appeals for Veterans Claims has determined that a remand by the Board confers upon a claimant, as a matter of law, the right to compliance with remand orders. See generally Stegall v. West, 11 Vet. App. 268, 270-71 (1998). 4. Then, after undertaking any development deemed necessary in addition to that specified above, the RO should readjudicate the issue of whether or not new and material evidence has been submitted to reopen a claim of entitlement to service connection for hypertension. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant is free to submit any additional evidence he desires to have considered in connection with his current appeal. No action is required of the veteran until he is notified. F. JUDGE FLOWERS Member, Board of Veterans' Appeals