Citation Nr: 0002213 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 95-25 965 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L.A. Howell, Associate Counsel INTRODUCTION The veteran served on active duty from November 1968 to June 1970. He was also a Member of the Mississippi National Guard for an unspecified period of time until he was disqualified from retention in December 1995. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which determined that new and material evidence had not been submitted to reopen a claim for service connection for hypertension. In a decision dated in June 1997, the Board affirmed the RO's denial. Subsequently, the veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (the Veterans Claims Court). During the pendency of that appeal, the United States Court of Appeals for the Federal Circuit overturned the test for new and material evidence. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). By Order entered November 2, 1998, the Veterans Claims Court vacated the Board's June 1997 decision, and remanded the case pursuant to 38 U.S.C.A. § 7252(a). Thereafter, the Board remanded the issue to the RO for further development. The requested developments have been accomplished and the case is now ready for appellate review. FINDINGS OF FACT 1. The RO denied entitlement to service connection for arterial hypertension by rating decision dated in February 1972. The veteran was notified of the decision but did not appeal. 2. That February 1972 rating decision held that there was no evidence of hypertension in service. The physical examination that demonstrated hypertension was more than 1 year following separation from service and did not relate the hypertension to any inservice occurrence or event. 3. The RO's February 1972 decision represents the last final disallowance of entitlement to service connection for hypertension on any basis. 4. The evidence submitted subsequent to the RO's February 1972 decision, which includes private medical evidence of treatment for hypertension since 1994, National Guard medical records, and statements from family friends, in an attempt to reopen the veteran's claim for service connection does not bear directly and substantially on the issue of entitlement to service connection for hypertension. CONCLUSION OF LAW The evidence submitted subsequent to the RO's February 1972 rating decision denying entitlement to service connection for hypertension does not bear directly and substantially on the matter under consideration; therefore, is not new and material and the veteran's claim has not been reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991 & Supp. 1999); 38 C.F.R. § 3.156 (1999); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION Unappealed rating decisions are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7105 (West 1991 & Supp. 1999); 38 C.F.R. § 3.156 (1999). However, when a veteran seeks to reopen a claim based on new evidence, the Board must first determine whether the veteran has submitted new and material evidence. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). During the pendency of the veteran's appeal, the United States Court of Appeals for the Federal Circuit overturned the test that had been used for new and material evidence. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Board notes that the now-current standard for the submission of new and material evidence was not in effect at the time of the original RO decision. New and material evidence is defined as evidence not previously submitted which bears directly and substantively on the matter under consideration. It can be 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. See 38 C.F.R. § 3.156 (1999); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). If the Board determines that new and material evidence has been added to the record, the claim is reopened and the Board must determine whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded. See Elkins v. West, 12 Vet. App. 209 (1999); Winters v. West, 12 Vet. App. 203 (1999). Prior to Hodge, but interpreting the same regulation, the Veterans Claims Court found that when a veteran sought to reopen a claim based on new evidence, the Board first determined whether the additional evidence is "new" and "material." Second, if the Board determined that new and material evidence had been added to the record, the claim was reopened and the Board evaluated the merits of the veteran's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991). The first step of the Manio two-step process included determining (i) was the newly presented evidence "new" (that is, not of record at the time of the last final disallowance and not merely cumulative); (ii) was it probative of the issue at hand (that is, each issue which was a specified basis for the last final disallowance); and (iii) if it was new and probative, then, in light of all the evidence, was there a reasonable possibility that the outcome of the claim on the merits would be changed. Evans v. Brown, 9 Vet. App. 273 (1996); see also Blackburn v. Brown, 8 Vet. App. 97 (1995); Colvin v. Derwinski, 1 Vet. App. 171 (1991); Smith v. Derwinski, 1 Vet. App. 178 (1991). Historically, the RO denied entitlement to service connection for hypertension by rating decision dated in February 1972 after reviewing the veteran's service medical records and a VA examination report. It was noted that the separation examination did not reveal hypertension. There was a VA examination, over 1 year after separation from service, that contained findings indicative of hypertension. The veteran was notified but did not appeal that decision. Thereafter, the medical records are negative for diagnosis of or treatment for hypertension for many years after service separation. In May 1995, the veteran filed a claim for high blood pressure and chronic strokes. He alleged treatment for blood pressure and strokes beginning in October 1994. In support of his claim, the veteran submitted medical records from the National Guard, private treatment records, and statements from family friends. Specifically, periodic examination reports from the Mississippi National Guard show blood pressure readings of 130/80 (April 1980), 148/72 (December 1987), 152/108 (June 16, 1989), 103/80 (June 19, 1989), and 138/86 (April 1992). A March 1995 National Guard report indicates that the veteran had a history of poorly controlled hypertension, a history of obstructive sleep apnea, and was overweight. In December 1995, he was disqualified from retention. In the materials relating to the Medical Duty Review, there is a letter concerning the veteran's release from the National Guard which includes the notation that "[a]lthough your medical problems are not duty related..." He is then informed that he is eligible for some retirement, based on length of service. The Board finds that the veteran's claim cannot be reopened based on the National Guard records. Except for one high blood pressure reading in June 1989, there is no evidence of hypertension contained in the National Guard records. Thus, although the medical records are new, they fail to show a diagnosis of or treatment for hypertension that is related to service. Because there is no diagnosis of hypertension contained in the National Guard medical records, the evidence does not bear directly and substantively on the matter of service connection for hypertension. Again, there is no competent opinion that the veteran has hypertension that is related to service. While he has made that contention, it is noted that there is not now, nor has there ever been, supporting clinical or medical documentation to support that opinion. Next, the veteran submitted outpatient treatment records dated in July 1994 which show that the veteran sought treatment for a right elbow injury. At that time, his blood pressure was reported at 168/94. The veteran contends, in part, that he developed hypertension as a result of a right elbow injury sustained while on duty with the National Guard. However, the Board notes that at the time of treatment, the veteran's blood pressure was reported at 168/94 and hypertension was not diagnosed or even mentioned. Further, hypertension was present at the 1972 examination. Thus, the July 1994 medical evidence does not reveal a diagnosis of hypertension and is not material to the veteran's claim. Additional medical evidence submitted in support of the veteran's claim included private hospital and treatment records showing that the veteran sought treatment in October 1994 for a four week history of recurrent transient ischemic attacks (TIAs). The treating physician indicated that the veteran was in his usual state of health until diagnosed with hypertension one month previously and was started on blood pressure medication. Since that time, the veteran had experienced several episodes of right sided numbness associated with slurred speech and headache. He was hospitalized and diagnosed with most likely TIAs. One consultation note specifically observed that the veteran did not have a history of hypertension. Outpatient and private treatment records show on-going treatment for hypertension and TIAs. In a February 1995 letter apparently regarding the veteran's National Guard service, Gregory R. Nunez, M.D., the veteran's private treating physician, indicated that the veteran was totally disabled and that he continued to have right side arm pain and a burning sensation on the left side of the face. Medications included Coumadin and Dilantin. In a March 1995 letter, Paul R. Atchison, M.D., another private treating physician, indicated that the veteran had one carotid artery and that he had been born that way. Dr. Atchison revealed that the veteran's condition had not been diagnosed until he was treated for TIAs, which put the veteran at higher risk for a stroke. Dr. Atchison also noted that the veteran was diagnosed with sleep apnea and needed an apparatus to help breathing during sleep. In a February 1996 letter, Dr. Nunez related that he had treated the veteran since October 1994 for angenesis of the left internal carotid artery, hypertension, and questionable focal seizures and concluded that the veteran was totally disabled. After carefully reviewing the private treatment records, the Board concludes that the medical evidence is not sufficient to reopen the veteran's claim. Significantly, neither of the veteran's private treating physicians have attributed the veteran's hypertension or TIAs to his military service. Moreover, at the time the veteran originally sought treatment for symptoms associated with hypertension in October 1994, he made no connection to military service. Further, the Board observes that the veteran's medical records are negative for diagnosis of or treatment for hypertension for many years after service separation. Also of note, at the time of the veteran's October 1994 hospitalization for TIAs, there was no medical opinion or otherwise indication that his TIAs or hypertension were related to the July 1994 right elbow injury. Finally, at the time of treatment in October 1994, the veteran related that he had been diagnosed with hypertension for one month, dating the diagnosis to September 1994, several months after the right elbow injury. Because there is no objective medical evidence indicating a connection between military service and subsequent hypertension, the evidence is not new and material because it does not bear directly and substantively on the matter of service connection for hypertension. There is also no clinical documentation that associates any hypertension with any duty in the Reserve. The next items for additional consideration include two statements from long-time family friends to the effect that they had known the veteran all his life and that he had been ill since birth, with one mentioning epileptic seizures, and that he was now totally disabled. Although fairly recently written, these statements vaguely report the veteran's life- long undefined illness and do not mention hypertension specifically. Moreover, even if the friends knew about the veteran's hypertension, they are not competent to establish a medical relationship to service. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The Board has also considered the multiple written statements submitted by the veteran. Although his statements are deemed truthful and probative of symptomatology, they are not competent or credible evidence of a diagnosis, date of onset, or medical causation of a disability. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); Miller v. Derwinski, 2 Vet. App. 578, 580 (1992). His assertions as to such relationship are not deemed to be credible in light of the other objective evidence of record showing no medical correlation between military service and his current hypertension. He lacks the medical expertise to offer an opinion as to the existence of medical causation of any current disability. Id. In the absence of competent, credible evidence of a medical nexus, and, as none of the evidence discussed above is both new and material, the claim for entitlement to service connection for hypertension is not reopened. 38 U.S.C.A. § 5108 (West 1991 & Supp. 1999); 38 C.F.R. § 3.156 (1999). Having found that the evidence is not new and material, there is no reason for the Board to reach the issue of well-groundedness. Finally, the Board notes that the June 1999 remand directed the RO to inform the veteran that he was free to submit additional evidence and argument. The Board is also aware that the Board is obligated by law to ensure that the RO complies with its directives and compliance is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). In July 1999, the RO sent a letter to the veteran providing an opportunity for additional evidence, to which the veteran did not respond. In September 1999, a supplemental statement of the case (SSOC) was issued with the instruction that if the SSOC contained an issue that was not included in the substantive appeal, the veteran had 60 days in which to perfect an appeal as to the new issue. The veteran's service representative erroneously suggests that this means the veteran had 60 additional days with which to offer additional evidence and argument on the new and material issue claim. In fact, as the letter clearly states, the veteran had 60 days to file a substantive appeal as to any new issue contained in the SSOC. As he had no new issue in the SSOC, this language was not applicable to the claim already on appeal. Nonetheless, even considering the veteran's statement submitted in November 1999, the Board finds that another remand is not necessary. First, the veteran provided only Dr. Nunez's name and fax number. The Board notes that Dr. Nunez has already submitted two separate letter statements, plus dictated the Discharge Summary from the veteran's October 1994 hospitalization, which have been considered by the Board. There is no suggestion that Dr. Nunez had altered his opinion or prior findings with respect to the veteran's hypertension. Moreover, it appears to the Board that the claims file contains a full complement of National Guard records from Columbus Air Force Base. The veteran has not alleged that any particular records are missing and the Board has considered those records in this decision. For those reasons, the Board finds that another remand for records, without a specific allegation that certain records are missing or unconsidered, would unnecessarily delay resolution of this case. ORDER New and material evidence having not been submitted, the claim for entitlement to service connection for hypertension is not reopened and the benefits sought are denied. MICHAEL D. LYON Member, Board of Veterans' Appeal