09-27 922, 09-27 922

Veteran served active duty July 1956–January 1979; died June 2008; appellant is surviving spouse.
Veteran filed for service connection for hypertension (original claim Aug 2002); RO denied in June 2003 and the decision became final (no timely appeal).
Veteran submitted a petition to reopen in Sept 2007 and private treatment records (showing a hypertension diagnosis) were later associated with the record.
Board found the post-2003 private records are new and material and thus reopened the hypertension claim for accrued-benefits review, but only evidence dated on or before the veteran’s death may be considered.
Record at time of death: diagnosis of hypertension in private records, service treatment records without a hypertension diagnosis or qualifying repeated high readings, conceded Vietnam/Agent Orange exposure, death from respiratory failure with lung metastases and bladder carcinoma.
Board remanded the separate claim that the veteran’s death was service-connected (Camp Lejeune water exposure theory) to the Louisville RO for development under current Camp Lejeune procedures.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether new and material evidence reopens final 2003 denial for hypertension	New private treatment records show a hypertension diagnosis and thus should reopen the previously denied claim	June 2003 decision is final absent new and material evidence; RO initially failed to evaluate reopening but later considered evidence	Reopened: post-2003 private records are new and material and raise a reasonable possibility of substantiating the claim
Entitlement to service connection for hypertension (accrued-benefits)	Hypertension existed before death and was caused by in-service herbicide (Vietnam) exposure	Service records do not show diagnosis or required repeated high BP readings; lay assertions insufficient to establish medical nexus; hypertension not on Agent Orange presumptive list	Denied: evidence at time of death does not establish in-service onset, continuity to within 1 year of separation, presumptive herbicide link, or competent nexus evidence
Whether hypertension can be presumed due to Agent Orange (Vietnam service)	Veteran served in Vietnam and claims herbicide exposure caused hypertension	Hypertension is not a listed presumptive disease for herbicide exposure; regulations exclude hypertension from ischemic heart disease category	Denied: herbicide presumption not applicable; direct causation not established by competent medical evidence

Jackson v. Principi, 265 F.3d 1366 (Fed. Cir.) (Board must address whether new and material evidence reopens a final claim before adjudicating merits)
Barnett v. Brown, 83 F.3d 1380 (Fed. Cir.) (if no new and material evidence is shown, Board lacks jurisdiction to proceed to merits)
Shedden v. Principi, 381 F.3d 1163 (Fed. Cir.) (elements required to establish service connection)
Shade v. Shinseki, 24 Vet. App. 110 (Vet. App.) (reopening standard interpreted to favor reopening; consider whether evidence could trigger duty to assist or new theory)
Gilbert v. Derwinski, 1 Vet. App. 49 (Vet. App.) (benefit-of-the-doubt rule standard)