BVA9507330 DOCKET NO. 92-54 236 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Providence, Rhode Island 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 WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. D. Regan, Associate Counsel INTRODUCTION The veteran had active service from January 1970 to April 1970. This matter came before the Board of Veterans' Appeals (hereinafter "the Board") on appeal from an April 1991 rating decision of the St. Petersburg, Florida Regional Office (hereinafter "the RO") which for lack of new and material evidence declined to reopen the veteran's claim for service connection for hypertension. In September 1992, the Board remanded this appeal to the RO so that an attempt could be made to obtain private treatment records and to verify the veteran's actual dates of active service. In January 1994, the Board again remanded this appeal to the RO so that the veteran could be issued a supplemental statement of the case as to the continued denial of his claim. The veteran has been represented throughout this appeal by the American Legion. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts on appeal that the RO erred in failing to reopen and grant his claim for service connection for hypertension. The veteran contends, essentially, that his hypertension had its onset during 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(s). 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 the veteran has not submitted new and material evidence sufficient to reopen his claim for service connection for hypertension. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. In August 1984, the RO denied service connection for hypertension. The veteran was notified in writing of the decision and of his appellate rights in September 1984. The veteran did not perfect an appeal within one year of the adverse decision. 3. The evidence submitted since the August 1984, decision is essentially cumulative in nature and, when viewed in conjunction with the record as a whole, would not alter the prior decision . CONCLUSIONS OF LAW 1. The additional documentation received since the August 1984 RO decision denying the veteran's claim for service connection for hypertension does not constitute new and material evidence. 38 U.S.C.A. §§ 5107, 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994). 2. The RO's August 1984 rating decision denying service connection for hypertension is final and may not be reopened. 38 U.S.C.A. §§ 1110, 5107, 5108 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Department of Veterans Affairs (hereinafter "VA") has a duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991). A review of the record indicates that all relevant facts have been properly developed. The Board observes that pursuant to the September 1992 remand instructions, the RO contacted the veteran and requested that he provide the name of his mother's physician who had allegedly treated him following service. The veteran reported that he had been treated by Dr. Frederick J. Fay and Dr. Richard Baronian. In December 1992, the RO sent letters to Dr. Fay and Dr. Baronian requesting treatment records. The correspondence to both Dr. Fay and Dr. Baronian was returned "Forwarding Order Expired" and the veteran was so notified. The veteran was notified and requested to assist in obtaining the records. In February 1993, the veteran indicated that Dr. Fay had died and that Dr. Baronian's practice had been taken over by a Dr. Patel. In May 1993, the RO requested additional information from the veteran. In June 1993, the veteran responded with the address of a United States Air Force hospital with listed relevant treatment dates during his period of service. (However, these records had already been associated with the veteran's claim.) No further information was forthcoming from the veteran. The Board is satisfied that the total clinical and other documentary evidence available is sufficient to determine the issue presently on appeal. I. Prior RO Decision In August 1984, the RO denied service connection for hypertension. The veteran was informed in writing of the denial and of his appellate rights in September 1984. The veteran did not perfect a substantive appeal within the following year. The evidence considered by the RO in formulating its August 1984 decision may be briefly summarized. The veteran's service medical records reflect that at the time of the September 1969 enlistment examination, he had a blood pressure reading of 136/86. His vascular system was noted to be normal. A January 1970 treatment entry noted a blood pressure reading of 128/80. After a blood pressure reading of 142/80 was recorded, the veteran, in mid February 1970, underwent a three day blood pressure check. Sitting blood pressure readings of 140/100, 140/92, 130/82, 132/86, 124/90, 132/88 were noted. Recumbent blood pressure readings were 140/84, 132/74, 126/76, 130/84, 130/88 and 132/86. Standing readings of 140/100, 132/80, 126/80, 116/80, 124/88 and 134/90 were also reported. Subsequently, in late February 1970, a blood pressure reading of 100/66 was recorded. A March treatment entry indicated a blood pressure reading of 110/70. A later March entry reported that the veteran complained of severe headaches with intermittent dizzy spells. Blood pressure readings of 120/80 and 120/70 were noted. The veteran's chest and heart were normal. A mid-March 1970 neurology consultation sheet also indicated that the veteran complained of headaches. He reported that he had suffered headaches all of his life and that the headaches had become more severe in the past one to two years. It was noted that a 3 day blood pressure check was "ok." The veteran's blood pressure was 132/88. The impression included probable muscle contraction with the headaches related to prior illness or tension. A subsequent March 1970 entry noted standing blood pressure of 120/72. Pursuant to the April 1970 separation examination, the veteran checked "yes" as to whether he had high or low blood pressure. The examiner reported that the veteran had not experienced a significant illness or injury since his induction into service. The examiner noted that the veteran had been diagnosed with an inadequate personality, but went on to comment that the veteran had suffered no other significant illness or injury or an aggravation of a pre-existing condition during his term of service. In his August 1984 Application for Compensation or Pension, the veteran indicated that he had undergone treatment for high blood pressure during service. He also reported treatment for high blood pressure at a VA medical center in 1980. II. New and Material Evidence Absent the filing of a notice of disagreement within one year of the date of mailing of the notification of the initial review and determination of an appellant's claim, a rating determination is final and is not subject to revision upon the same factual basis. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.104(a) (1993). However, 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). The United States Court of Veterans Appeals (hereinafter "the Court") has clarified that: Pursuant to 38 U.S.C.A. § 5108 (West 1991), a previously and finally disallowed claim must be reopened by the Secretary when "new and material evidence" is presented or secured with respect to that claim. Evidence is new and material only if not cumulative and if it is "relevant and probative" and there is "a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Tubianosa v. Derwinski, 3 Vet.App. 181, 182 (1992) (quoting Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991)). The Court has also held that the provisions of 38 U.S.C.A. § 5108 (West 1991) require a review of all evidence submitted by a claimant since the last final denial of the merits of a claim in order to determine whether a claim must be reopened and readjudicated on the merits. Glynn v. Brown, 6 Vet.App. 523, 529 (1994). Therefore, the issue presently before the Board is whether new and material evidence has been submitted since the RO's August 1984 decision. The evidence received since the RO's August 1984 decision consists of VA treatment records dated from February 1991 to March 1991, which show treatment for hypertension, statements on appeal from the veteran and the September 1991 hearing testimony. In a March 1991 statement, the veteran reported that he was diagnosed with high blood pressure during service in 1970 to 1971. In his July 1991 substantive appeal, the veteran reported that he had high blood pressure readings in February 1970. He indicated that he was given medication at that time for hypertension. At the September 1991 hearing on appeal, the veteran testified that he was told by a physician during service in 1970 that he had high blood pressure. The veteran reported that he had gone to sick call for a headache. He related that he was later hospitalized for a three day blood pressure check. The veteran also indicated that he had a lot of headaches during service. He stated that he was on medication for high blood pressure during service, but he could not recall the name. The veteran further reported that he had been told by his mother that he saw her doctor following service, but that she was not sure if it had been for high blood pressure. The veteran testified that he did not have a heart condition. After carefully weighing the additional documentation submitted since the RO's August 1984 decision, the Board concludes that it is essentially cumulative in nature. The Board notes that the VA treatment records dated from February 1991 to March 1991 are solely indicative of recent treatment for hypertension which occurred approximately twenty years after the veteran's separation from service. These records contain no clinical evidence or medical opinion indicating that the veteran's hypertension had its inception during service or within the one year presumptive period following service separation. In his statements and testimony on appeal, the veteran reported that he was diagnosed with hypertension in service and treated with medication. However, the veteran's own recitations of his medical history does not constitute new and material evidence sufficient to reopen his claim when his service medical records are negative for such diagnosis and treatment. When viewed in conjunction with the old evidence, the VA treatment records, the veteran's statements and his testimony on appeal are simply not of sufficient weight to establish a reasonable possibility that the outcome of the case would change. Accordingly, the RO's August 1984 decision remains final and the claim is not reopened. ORDER New and material evidence not having been submitted to reopen the veteran's claim for service connection for hypertension, the benefit sought on appeal is denied. CONSTANCE B. TOBIAS 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.