Citation Nr: 0001555 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 97-13 151A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hypertension and atrial fibrillation, to include as secondary to exposure to Agent Orange or other herbicides. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Allen, Associate Counsel INTRODUCTION The veteran served on active duty from June 1965 to April 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1996 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in San Juan, Puerto Rico, which held that new and material evidence had not been submitted to reopen a claim by the veteran seeking entitlement to service connection for hypertension and atrial fibrillation, to include as secondary to exposure to Agent Orange or other herbicides. FINDINGS OF FACT 1. The veteran was denied entitlement to service connection for hypertension and atrial fibrillation, to include as secondary to exposure to Agent Orange or other herbicides, in an August 1994 RO rating decision. The reason for the RO's denial was that no evidence indicated that the conditions were incurred in or related to service, including to Agent Orange exposure, nor were the conditions manifested within 1 year after service. 2. The veteran was apprised of the RO's rating decision and of his procedural and appellate rights in an August 1994 letter from the RO. He did not appeal that decision within the subsequent one year period. 3. No additional evidence has been received since the August 1994 rating decision indicating that hypertension or atrial fibrillation was incurred in or related to service, including to exposure to Agent Orange or other herbicides. CONCLUSIONS OF LAW 1. The August 1994 denial of service connection for hypertension and atrial fibrillation, to include as secondary to exposure to Agent Orange or other herbicides, is a final decision. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.302(a) (1999). 2. Evidence received since the August 1994 rating decision denying service connection for hypertension and atrial fibrillation, to include as secondary to exposure to Agent Orange or other herbicides, is not new or material, and, thus, that claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Background The record shows that a rating decision denying a claim for service connection for hypertension and atrial fibrillation, to include as secondary to exposure to Agent Orange or other herbicides, was rendered by the RO in August 1994. In that decision, the RO concluded that neither hypertension nor atrial fibrillation was incurred in service (or within 1 year after service) and was not related to exposure to Agent Orange. The veteran was notified of this decision in August 1994, but did not appeal within a year of being notified. Thus, the August 1994 RO decision is final. 38 C.F.R. § 20.302(a) (1999). II. Regulatory provisions a. Service connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999) . Direct service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(a), (b), (d) (1999). Service connection may also be established for a disability on a secondary basis, i.e. when the evidence shows that it is "proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310 (1999). Cardiovascular-renal disease, including hypertension, presumed to have been incurred in service if manifested to a compensable degree within one year after separation from service. 38 C.F.R. §§ 3.307, 3.309(e) (1999). For veterans who served in the Republic of Vietnam during the Vietnam era and who have one of the diseases listed in 38 C.F.R. § 3.309(e), the law provides a presumption that the veteran was exposed during such service to an herbicide agent (e.g. Agent Orange) and a presumption of service connection for any listed diseases, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (1999). The presumptive diseases are: chloracne or other acneform diseases consistent with chloracne; Hodgkin's disease; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and certain soft-tissue sarcomas. 38 C.F.R. § 3.309(e) (1999). Generally, these diseases must have become manifest to a degree of 10 percent or more anytime after service. 38 C.F.R. § 3.307(a)(6)(ii) (1999). The Secretary of the Department of Veterans Affairs has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 59 Fed.Reg. 341 (1994). Nevertheless, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). b. New and material evidence Once a claim for service connection has been finally denied, it may be reopened upon submission of new and material evidence. 38 U.S.C.A. § 5108 (West 1991). ("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."). "New and material evidence" is defined as that "not previously submitted to the agency decisionmakers 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 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) (1999). Thus, to reopen a claim that was previously and finally disallowed, a two-step analysis must be conducted ("Manio test"). Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). First, it must be determined whether the additional evidence, submitted since the last prior final disallowance, is new and material. Second, if such evidence is determined to be new and material, the disallowed claim must be reopened and the former disposition reviewed based on all the evidence of record to determine the outcome of the claim on the merits. Evans v. Brown, 9 Vet. App. 273, 283 (1996) (citations omitted); Blackburn v. Brown, 8 Vet. App. 97, 102 (1995); Colvin v. Derwinski, 1 Vet. App. 171 (1991). The first prong of the Manio test, i.e., determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, involves two questions: (1) whether the newly presented evidence is "new" and, if so, (2) whether it is "material" in the sense of being relevant to and probative of the "issue at hand" in the case. Id. Historically, a third question was also presented, namely whether the additional evidence raised a reasonable possibility of changing the previous disallowance of the claim. Evans, 9 Vet. App. at 283 (citations omitted); Manio, 1 Vet. App. at 145 (1991). However, in Hodge v. West, the United States Court of Appeals for the Federal Circuit recently held that this third element for new and material evidence (i.e. that it raise a reasonable possibility of changing the previous disallowance) was not a reasonable interpretation of the regulatory provisions pertaining to new and material evidence, namely 38 C.F.R. § 3.156(a). Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Therefore, there no longer is a requirement that the new evidence provide a "reasonable possibility" of changing the outcome of the case. However, if new and material evidence has been presented, the Board must then determine if a claim is well-grounded before it may reopen the claim and evaluate it on the merits. Winters w. West, 12 Vet. App. 203 (1999); Elkins v. West, 12 Vet. App. 209 (1999). In deciding claims for VA benefits, "when there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant." 38 U.S.C.A. § 5107(b) (West 1991). III. Evidence a. Evidence received prior to August 1994 Service medical records note no hypertension or heart problems at the time of the veteran's entry into active duty. An April 1964 pre-induction physical examination report shows a blood pressure reading of 110/80. A June 1965 induction medical examination report shows no heart problems; blood pressure was reported as 134/64. No complaints of, treatment for, or diagnosis of hypertension or atrial fibrillation is shown during service. The veteran's March 1967 separation medical report indicates that his heart status was normal; blood pressure was 122/70. No medical records from the time of separation from service in March 1967 through May 1984 are of record. Private outpatient records from June and July 1984 show that the veteran had enlarged breasts, determined to be right and left gynecomastia. Hypertension or atrial fibrillation is not mentioned. A February 1989 VA Agent Orange examination report indicates that the veteran complained of palpitation of his heart of 2 months duration. Chest X-ray was normal. An electrocardiogram (ECG) study revealed atrial fibrillation. Diagnosis was atrial fibrillation and hypertension. The veteran was seen for follow-up in April 1989. The outpatient record of that visit shows a blood pressure reading of 120/90. Private medical records from July 1992 to January 1993 show that the veteran presented problems of atrial fibrillation, hypertension, and obesity. The July 1992 record indicates blood pressure of 120/80. In August 1992, blood pressure was also 120/80. An October 1992 record indicates that blood pressure was 130/90. b. Evidence submitted since August 1994 An October 1995 private prescription note indicates that the veteran had a heart condition and recurrent auricular arrhythmia, and that he needed to live a tranquil life for the moment due to a recurrence of the illness. Additional private medical records are dated from September 1995 to April 1996. They indicate that the veteran was seen for hypertension and atrial fibrillation. A September 1995 record indicates a blood pressure reading of 110/76. An October 1995 record indicates a blood pressure reading of 120/80. Outpatient notes from November 1995, January 1996, February 1996, and March 1996 all show a blood pressure reading of 120/70. A February 1996 private ECG report confirms the presence of atrial fibrillation. An April 1996 note indicates a blood pressure reading of 110/70. A July 1996 note indicates blood pressure of 120/80. A September 1996 VA heart disease examination report reflects, as medical history, that the veteran was found to be hypertensive in 1989 during VA Agent Orange examination. He was given Corgard. Later, ECG revealed atrial fibrillation. The veteran reported no current symptomatology. Heart examination was normal. Blood pressure was 142/98, 146/102, and 150/100. Diagnosis was hypertensive cardiovascular disease with left ventricular atrophy and paroxysmal atrial fibrillation. On VA general medical examination in September 1996, clinical evaluation of the cardiovascular system was normal. Blood pressure was reported as 134/90, 130/90, and 136/92. Diagnosis was hypertensive cardiovascular disease and atrial fibrillation. A December 1996 private physical evaluation report indicates that the veteran had been under the examining physician's care since February 1991, that he had cardiac fibrillation and cardiovascular hypertension, and that he was indefinitely unable to work due to his cardiac problems. An April 1997 VA examination report reflects that the veteran's blood pressure was stable and normal with medication. He complained of shortness of breath and chest pains after strenuous effort. Cardiovascular examination revealed heart arrhythmia and blood pressure of 130/90. Diagnosis was atrial fibrillation. The veteran testified at a personal hearing in September 1997. During the hearing, he stated that he was never told that he had high blood pressure problems during service and that high blood pressure was first discovered in 1989, during VA examination. The veteran indicated that he submitted a claim for service connection for high blood pressure and a heart condition because his representative told him that those conditions were related to Agent Orange exposure. IV. Analysis As stated above, the veteran's claim seeking entitlement to service connection for hypertension and atrial fibrillation, to include as secondary to exposure to Agent Orange or other herbicides, was finally denied by the RO in August 1994. Therefore, that claim may be reopened only if the Board finds that new and material evidence has been submitted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a) (1999); (West 1991); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (the Board may not consider a previously and finally disallowed claim unless new and material evidence is presented and, before the claim is reopened, the Board must find new and material evidence). Evidence is "new" when it is not of record at the time of the last prior disallowance and not merely cumulative of other evidence that was then of record. Evans, 9 Vet. App. at 283 (citations omitted). In this matter, the additional evidence submitted since the prior final denial in August 1994 consists of medical evidence and hearing testimony from the veteran. The medical evidence is dated from 1995 to 1997, and shows treatment during that time period for hypertension and atrial fibrillation. However, that the veteran currently had hypertension and atrial fibrillation was accepted by the RO when it rendered its August 1994 decision. Therefore, none of these documents constitutes "new" evidence. They are merely cumulative and redundant, reiterating that the veteran currently has hypertension and atrial fibrillation. 38 C.F.R. § 3.156 (1999). Similarly, the personal hearing testimony is not "new" evidence. It merely reiterates the veteran's contentions that he feels entitled to service connection for hypertension and atrial fibrillation. The veteran previously made those contentions, which were considered by the RO in August 1994. Therefore, the personal hearing testimony does not include any "new" evidence. Id. It should be noted that the Board also finds that none of the additional evidence is "material" for purposes of new and material evidence. As stated above, in order to be "material," the evidence must be probative of the "issue at hand." Evans, 9 Vet. App. at 283; Hodge, supra. Here, the issue at hand is whether hypertension or atrial fibrillation was incurred in service, including secondary to exposure to Agent Orange or other herbicides, or within 1 year after service. [While presumptive service connection is available for certain diseases, 38 C.F.R. § 3.309(e), hypertension and atrial fibrillation are not listed as presumptive diseases.]. Thus, in order to be "material," the additional evidence would have to address inservice incurrence of hypertension or atrial fibrillation or a relationship between said conditions and inservice Agent Orange exposure. None of the additional evidence does so. In fact, when the etiology of the veteran's hypertension and atrial fibrillation is mentioned, all of the evidence, including the veteran's own sworn testimony, indicates that they were incurred many years after service; both hypertension and atrial fibrillation were first noted during VA examination in 1989, approximately 12 years after the veteran separated from service. Overall, none of the additional medical evidence in the claims file supports the conclusion of inservice incurrence of hypertension or atrial fibrillation, or of a relationship between hypertension or atrial fibrillation and inservice Agent Orange exposure. In addition, none of the evidence shows hypertension or atrial fibrillation within 1 year after the veteran separated from service. In light of the above, the Board must deny the veteran's request to reopen his previously denied claim for entitlement to service connection for hypertension and atrial fibrillation, to include as secondary to exposure to Agent Orange or other herbicides. No new and material evidence has been submitted in regard to this claim. The Board acknowledges that the United States Court of Appeals for the Federal Circuit recently held that new and material evidence does not have to raise a reasonable possibility of changing the previous disallowance, Hodge v. West, 155 F.3d 1353 (Fed. Cir. 1998), and that the RO used the "reasonable possibility" language in rendering its decision in November 1996. However, the veteran was not prejudiced by the Board's rendering of this decision. 38 U.S.C.A. § 7621(b) (West 1991); see Bernard v. Brown, 4 Vet. App. 384 (1993). Here, the veteran was provided all of the pertinent regulations pertaining to new and material evidence in the RO's May 1997 Statement of the Case. Moreover, the RO's November 1996 rating decision specifically noted that the veteran's claim was denied because no evidence indicated that hypertension or atrial fibrillation were incurred in service, or were related to Agent Orange exposure. Therefore, the veteran was on notice that he must present evidence of inservice incurrence of hypertension or atrial fibrillation, or of a relationship between these disorders and inservice Agent Orange exposure, in order for his claim to be reopened. It is noteworthy that, even without the "reasonable possibility" requirement, the veteran's claim would still be denied, because none of the evidence is even "new;" it is merely cumulative. The law does not require a useless act. There is no prejudicial error if it is clear that a claim would have been unsuccessful irrespective of the error. Winters v. West, 12 Vet. App. 203, 207 (1999). Even though evidence is not found to be new and material, VA may be obligated under 38 U.S.C.A. § 5103(a) (West 1991) to advise a claimant of evidence needed to complete his or her application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of the Department of Veterans Affairs has advised the claimant of the evidence necessary to be submitted to reopen a VA benefits claim through the presentment of new and material evidence. Graves v. Brown, 9 Vet. App. 172 (1996) (per curiam), citing Robinette v. Brown, 8 Vet. App. 69 (1995). In this case, the RO fulfilled its obligation under section 5103(a) in its Statement of the Case, in which the veteran was informed that the reason for the denial of his claim was that no new and material evidence had been submitted. Moreover, unlike the situation in Graves, the veteran has not put the VA on notice of the existence of any specific, particular piece of evidence that might be relevant and probative to this claim. In light of the above, the Board must deny the veteran's claim. ORDER New and material evidence has not been submitted to reopen a claim of entitlement to service connection for hypertension and atrial fibrillation, to include as secondary to exposure to Agent Orange or other herbicides; therefore, the benefit sought on appeal remains denied. A. BRYANT Member, Board of Veterans' Appeals