BVA9500799 DOCKET NO. 93-10 992 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. A. Dowdell, Associate Counsel INTRODUCTION The veteran served on active duty from June 1971 to March 1974. Service connection for benign essential hypertension was denied by a rating action dated in August 1985. The veteran was advised of this determination by a letter dated in August 1985. No appeal was taken from that determination. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a January 1993 rating decision from the St. Louis, Missouri, Regional Office (RO), which held that new and material evidence had not been received to reopen the veteran's claim for service connection for hypertension. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that he suffers from hypertension which had its onset during his period of active service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence sufficient to reopen the claim for service connection for hypertension has not been received. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. Service connection for benign essential hypertension was denied by a rating action dated in August 1985. This decision was not appealed. 3. The evidence submitted since the final August 1985 rating action is essentially cumulative of evidence previously of record and, as such, does not raise a reasonable possibility of change in the prior determination. CONCLUSION OF LAW The unappealed August 1985 rating action which denied service connection for hypertension is final, and new and material evidence sufficient to reopen a claim for service connection for hypertension has not been received. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156, 20.200 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the veteran's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107. That is, the Board finds that he has presented a claim which is plausible. We are also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. The veteran's current appeal involves a request that the Board reopen his claim of service connection for hypertension. Service connection for benign essential hypertension was denied by a rating action dated in August 1985. The veteran did not appeal that determination. Service connection may be established for disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Where a veteran served 90 days or more during a period of war and hypertension becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). Notwithstanding the presumptive provisions, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1993). At the time of the August 1985 RO denial, the evidence included the incomplete service medical records, consisting only of the reports of entrance and separation medical examinations, together with medical histories, and summaries of Department of Veterans Affairs (hereinafter VA) hospitalization dated from April 1985 to May 1985. The veteran's service medical records did not reflect an elevated blood pressure reading. The veteran's April 1971 enlistment examination report disclosed that the veteran had a blood pressure reading of 134/78 while sitting. He reported no pertinent medical history of high or low blood pressure. The report of separation medical examination conducted in February 1974 shows the veteran's blood pressure reading was 138/76 while sitting. In the report of medical history, the veteran noted a pertinent medical history of high or low blood pressure and that he was using medications to combat very high blood pressure. The summary of defects and diagnoses included the pertinent notation of mild hypertension, controlled. Although the examiner at separation was competent to enter a diagnosis of hyper-tension, the absence of clinical findings were sufficient reason to question the diagnosis and require continuity of symptomatology. A summary of VA hospitalization dated from April 1985 to May 1985 revealed that hypertension was noted during the course of the veteran's hospitalization and that he was treated with Dyazide. The veteran's blood pressure reading was not reported. The diagnoses included mild benign essential hypertension. A summary of VA hospitalization dated later in May 1985 noted that the veteran reported a pertinent medical history of essential hypertension since April 1984. He also reported that his medications included Dyazide. The veteran had a blood pressure reading of 142/100. The August 1985 RO denial of service connection for the hypertension was based on findings that hypertension had not been demonstrated in service or shown to have become manifest to a degree of 10 percent during the presumptive period of one year following separation from service. The August 1985 RO denial was supported by the evidence then of record. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.105, 3.303 (1993). Although a diagnosis of hypertension had been entered at time of separation, there was an absence of findings that would support the diagnosis. See Cross v. Derwinski, 2 Vet.App. 150 (1992). In addition, the decision was supported by the 1985 hospital summaries reflecting that hypertension was of recent onset rather than of service origin. The statements provided in the summaries were provided for treatment purposes and are considered to be probative of the date of onset of the disease, Since the August 1985 denial was not appealed, it is a final decision that is binding upon the Board and the laws and regulations that pertain to unappealed rating decisions are for application. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.200, 20.302 (1993). Claims that have been the subject of prior unappealed rating actions may be reopened, and the entire evidentiary record thereafter considered, only upon the submission of additional evidence which, under applicable laws and regulations, is both new and material. "New" evidence means more than evidence that has not been previously included in the claims folder, and must be more than merely cumulative, in that it presents new information. Colvin v. Derwinski, 1 Vet.App. 171 (1991). In addition, the evidence, even if new, must be material, in that it is relevant and probative. To reopen the claim, there must be a reasonable possibility that the outcome would differ when the new evidence was considered in light of all the evidence. Since the RO determination in August 1985, the veteran has petitioned to reopen his claim. Additional evidence that has been received includes summaries of VA hospitalization dated from February 1992 to May 1992. These summaries demonstrate that the veteran received current treatment for hypertension. A summary of VA hospitalization dated in February 1992 noted that the veteran reported a medical history of hypertension and that he was previously treated with medication prior to admission. The physical examination showed that the veteran's blood pressure reading was 150/86 initially and later 138/100. The diagnoses included history of hypertension. A summary of VA hospitalization dated from late February 1992 to May 1992 demonstrates that the veteran was admitted for follow-up care for various disorders including hypertension. The report noted that the veteran's hypertension was currently controlled by Procardia. The diagnoses included hypertension. In view of the evidence of record, the Board concludes that the additional evidence submitted since the final August 1985 rating decision is not new, and does not add to the record any evidence, which when viewed in the context of all the evidence, would present a reasonable possibility of changing the outcome. The evidence is considered to be repetitious and cumulative in nature. At the time of the prior decision, the evidence tended to establish that the veteran had hypertension, but the disease had not been clinically manifest until more than 1 year after separation from service. In addition, there was an absence of competent evidence attributing the recent disease to service and an absence of continuity of symptomatology since service. The additional evidence has merely reiterated facts or allegations which were previously of record. The 1992 summaries of VA hospitalization confirm the veteran is suffering from hypertension, and reflect treatment and evaluation. However, it does not provide any basis for concluding that the veteran's current hypertension was incurred in or aggravated by military service. Similarly, there is no evidence that hypertension was manifested to a degree of 10 percent during the presumptive period following separation from service. Further, there is no competent evidence of continuity of symptomatology since discharge or attributing the veteran's current hypertension to service. In essence, no pertinent facts were added to the record. Therefore, the additional records received since the August 1985 agency of original jurisdiction denial of service connection for hypertension is not new and material evidence sufficient to reopen the claim. 38 U.S.C.A. § 5107. ORDER The claim for service connection for hypertension is not reopened and the appeal is denied. H. N. SCHWARTZ Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.