Citation Nr: 0004225 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 94-14 558 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a compensable evaluation for the residuals of an appendectomy. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Georgia Department of Veterans Service WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran served on active duty from October 1967 to June 1969. This appeal arose from a June 1992 rating decision of the Atlanta, Georgia, Department of Veterans Affairs (VA),Regional Office (RO), which denied entitlement to the requested benefits. A hearing was held in April 1994 before a member of the Board of Veterans' Appeals (Board) sitting in Atlanta, Georgia. In September 1996, the Board remanded the issues noted above for additional development. In September 1996, in compliance with the remand, the RO issued a supplemental statement of the case to the veteran and his representative, informing them of the laws and regulations pertaining to the finality of prior unappealed decisions. The case was subsequently returned to the Board. FINDINGS OF FACT 1. Whether the veteran meets the next higher rating for the residuals of an appendectomy (10 percent) depends on whether there is a scar which is tender and painful on objective demonstration or which is poorly nourished with repeated ulceration. The evidence of record does not resolve this issue. 2. The RO denied entitlement to service connection for hypertension in a rating action issued in April 1989. 3. Additional evidence received since that time fails to show that the hypertension was present in service or developed to a compensable degree within one year of his discharge. CONCLUSIONS OF LAW 1. The veteran's claim for an increased evaluation for the service-connected residuals of an appendectomy must be denied. 38 U.S.C.A. § 5107(a) (West 1991; 38 C.F.R. § 3.655(a) & (b) (1999). 2. Evidence received since the RO denied entitlement to service connection for hypertension in April 1989 is not new and material, so that the claim is not reopened, and the 1989 decision of the RO is final. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(a), 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 3.307, 3.309, 20.302 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to a compensable evaluation for the residuals of an appendectomy Under the applicable criteria, when entitlement or continued entitlement to a benefit, such as a claim for an increased evaluation, cannot be established or confirmed without a current VA examination or re-examination and a claimant, without good cause, fails to report for such an examination, or re-examination, the claim shall be denied. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, or the death of an immediate family member. 38 C.F.R. § 3.655(a) & (b) (1999); Engelke v. Gober, 10 Vet. App. 396 (1997). In January 1997, the veteran was informed that a VA examination of his appendectomy residuals was being scheduled. He failed to report. Because there was some question as to whether this original notification was sent to the most current address, a second notification of a VA examination scheduled for June 1999 was sent to the veteran's current address of record (the same address he gave when applying for a claim for PTSD in October 1999). He again failed to report to the examination. After a careful review of the record, it is found that entitlement to a compensable evaluation for the service- connected residuals of an appendectomy has not been shown to be warranted. Initially, it is noted that an additional examination is absolutely necessary in this case in order to determine the current nature and degree of severity of the service-connected appendectomy residuals. Unfortunately, the veteran has refused to cooperate with the efforts of the RO in obtaining the needed evidence by failing, without evidence of good cause, to report for the examinations. The inability of the RO to obtain the requested information has been solely due to the veteran's refusal to cooperate. Therefore, it is concluded that the RO has made all reasonable attempts to obtain the information requested in the Board's previous remand. Under these circumstances, 38 C.F.R. § 3.655(b) directs that the claim for an increased evaluation for the service-connected appendectomy residuals must be denied. In conclusion, it is found that the preponderance of the evidence is against the veteran's claim for an increased evaluation for the appendectomy residuals. II. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for hypertension The applicable criteria state that a notice of disagreement shall be filed within one year from the date of mailing of the notification of the initial review and determination; otherwise, that determination will become final and is not subject to revision on the same factual basis. The date of the notification will be considered the date of mailing for purposes of determining whether a timely appeal has been filed. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 20.302 (1999). 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. 38 U.S.C.A.§ 5108 (West 1991). "New and material evidence" means evidence not previously submitted to 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 conjunction 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). Under the applicable criteria, service connection may be granted for a disability the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and cardiovascular disease, to include hypertension, becomes manifest to a degree of 10 percent within one year from the 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 1999). The evidence which was of record when his case was reviewed by the RO in April 1989 will be briefly summarized. The veteran's service medical record included a June 1967 preinduction examination, which noted a blood pressure reading of 124/80. No hypertension was complained of or diagnosed during active duty. At the time of his April 1969 separation examination, his blood pressure was 110/80. His cardiovascular system was within normal limits and a chest x- ray was negative. During a January 1989 VA hospitalization for an unrelated illness, his blood pressure was 127/78. The records added to the record since the April 1989 rating decision included various private medical records dated from 1973 through 1975. He was hospitalized at a private facility in July 1973, at which time it was believed that he had had an acute myocardial infarction. Blood pressure readings were not noted and hypertension was not diagnosed. Private outpatient treatment records developed between September 1973 and October 1975, noted that his blood pressure ranged between 100-120/50-86. The veteran was examined by VA in April 1992. He indicated during this examination that he had been told the year before that he had hypertension. His readings were as follows: 140/100 (sitting); 130/100 (supine); and 140/100 (standing). The diagnosis was hypertension. In April 1994, the veteran testified before a member of the Board. He indicated that he now had hypertension. He expressed his believe that it was related to service. After a careful review of the evidence of record, it is found that the additional evidence which the veteran has submitted is not "new and material." Accordingly, his claim is not reopened and the April 1989 decision by the RO remains final. "New" evidence means more than evidence which was not previously physically of record. To be "new," additional evidence must be more than merely cumulative. Colvin v. Derwinski, 1 Vet. App. 171 (1991). In the instant case, the additional evidence is new, in that it established that the veteran currently has hypertension, a fact that had not been before the RO at the time of the 1989 denial. However, the additional evidence is not "material." The additional evidence must bear directly and substantially upon the specific matter under consideration and which by itself or in conjunction 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). In the instant case, the additional evidence contains no objective proof whatever that the veteran developed hypertension in service, or that this disorder manifested itself to a compensable degree within one year of his discharge. The records that were submitted did not show an actual diagnosis of hypertension until the April 1992 VA examination (while he had a myocardial infarction in 1973, these records did not show a diagnosis of hypertension; however, even if these records had demonstrated a diagnosis of hypertension, they are outside the one year presumptive period for service connection). Therefore, a review of this evidence clearly does not show that it is so significant that it must be considered in order to decide the merits of the claim. As such, the evidence is not "material" and does not serve to reopen his claim for service connection for hypertension. ORDER A compensable evaluation for the residuals of an appendectomy is denied. New and material evidence not having been submitted to reopen the claim of entitlement to service connection for hypertension, the benefit sought on appeal is denied. C. P. RUSSELL Member, Board of Veterans' Appeals