Veteranclaims’s Blog

January 30, 2022

Single Judge Application; AMIE; CAPRI; VISTA; the Secretary points out, the medical examination contains a footer indicating that it was generated by the Veterans Information Systems and Technology Architecture (VISTA), which means that it was processed by the Automated Medical Information Exchange (AMIE). See Secretary’s Br. at 8. “CAPRI is a graphic user interface to enhance access of [AMIE] files” because it “is easier to learn and use than AMIE.” M21-1MR, pt. III, subpt. v, ch. 6, §§ G-30(a), G-32(a). Therefore, it appears that the medical examination was transmitted at least via AMIE, or, more likely, via CAPRI. Transmission via AMIE or CAPRI satisfies the intent of the provision of the M21-1MR regarding unsigned examination reports because transmission via these systems means that “signed copies are maintained by the Veterans Health Administration.” M21-1MR, pt. III, subpt. iv, ch. 3, § D-18(a); see also id. § D-18(g) (stating that an examination report is insufficient for rating purposes if it is unsigned unless transmitted via AMIE or CAPRI).;

Filed under: Uncategorized — veteranclaims @ 11:39 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-4107
JAMES W. APPLEWHITE, SR., APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: James W. Applewhite, Sr., appeals through counsel a December 3, 2008,
Board of Veterans’ Appeals (Board) decision denying entitlement to VA benefits for hypertension
and coronary artery disease. Record (R.) at 3-16. The Court has jurisdiction pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a) to review the December 2008 Board decision. Because the May 2005 VA
medical examination upon which the Board relied was adequate, and because the Court declines to
exercise its discretion to hear Mr. Applewhite’s argument regarding the aggravation of his heart
murmur that was raised for the first time on appeal, the Court will affirm the December 3, 2008,
Board decision.
I. FACTS
Mr. Applewhite served on active duty in the U.S. Army from May 1969 to May 1971. R. at

  1. At his June 1968 entrance examination, the examiner noted Mr. Applewhite’s reported history
    of occasional chest pain and pressure in the chest. R. at 1574-75. On several occasions during
    service, Mr. Applewhite complained of chest pain and was diagnosed with a functional heart
    murmur. R. at 75-78, 1603.
    In June 1972, Mr. Applewhite filed a claim for VA benefits for a heart murmur, which was
    denied by a VA regional office in November 1972 because it found that this condition was a
    “[c]onstitutional or developmental abnormality–not a disability under the law.” R. at 1563. Mr.
    Applewhite did not appeal this decision, and it became final.
    Between December 1983 and May 1985, Mr. Applewhite saw numerous physicians regarding
    his chest pain and was variously diagnosed with a systolic heart murmur and possible mitral valve
    prolapse. R. at 460, 463-64, 466. In September 1999, Mr. Applewhite was also diagnosed with
    hypertension. R. at 418.
    In December 2004, Mr. Applewhite filed a claim for benefits for hypertension and coronary
    artery disease. R. at 533. Later that month, a VA physician noted that Mr. Applewhite had a history
    of coronary artery disease and discovered a “transient ischemic dilatation . . . which is a soft sign of
    ischemia.”1 R. at 316. The physician’s diagnosis was “[c]oronary artery disease probable.” Id.
    In May 2005, Mr. Applewhite was provided a VA medical examination. R. at 537-39. The
    VA examiner noted that Mr. Applewhite “had at least two cardiology evaluations done during
    separation from active duty,” and “[t]he only abnormality . . . noted [was] a functional [heart]
    murmur.” R. at 538. The examiner then defined a functional murmur as a “benign murmur [that]
    does not cause other types of problems.” R. at 539. Consequently, the examiner opined:
    [I]t is not likely that this type of murmur would cause any coronary artery disease. I
    can find no other indication of coronary artery disease during active duty including the
    cardiology evaluations done at least twice during active duty.
    With the evidence available for review, it is not likely that the problems associated at
    this time with coronary artery disease are secondary to active duty [and] the
    hypertension is not secondary to active duty.
    Id. Based on this examination, the regional office issued a decision in July 2005 denying his claims.
    R. at 532-36. Mr. Applewhite filed a timely Notice of Disagreement with this decision, R. at 528, and
    subsequently perfected his appeal, R. at 92.
    In December 2008, the Board issued the decision currently on appeal, which denied
    entitlement to benefits for hypertension and coronary artery disease. R. at 3-16. Specifically, the
    1 Ischemia is a “deficiency of the blood in a part, usually due to functional constriction or actual obstruction of
    a blood vessel.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 975 (31st ed. 2007).
    2
    Board denied these claims because there was no evidence of hypertension or coronary artery disease
    in service and the May 2005 VA medical examination concluded that his current hypertension and
    coronary artery disease were not related to service. R. at 12.
    On appeal, Mr. Applewhite argues that the Board’s reliance on the May 2005 VA medical
    examination constituted error because the examination was inadequate. Mr. Applewhite also asserts
    that the Board erred because it “did not consider whether [he] was entitled to [benefits] for coronary
    artery disease and hypertension due to aggravation of his pre-existing heart condition.” Appellant’s
    Brief (Br.) at 16. The Secretary disputes these contentions and argues that the Board disease should
    be affirmed.
    II. ANALYSIS
    A. Adequacy of the May 2005 VA Medical Examination
    Mr. Applewhite first argues that the Board’s reliance on the May 2005 VA medical
    examination was erroneous because the examination was inadequate. Specifically, Mr. Applewhite
    contends that the examination was inadequate because (1) the examiner did not opine as to the
    etiology of his hypertension and coronary artery disease; (2) the opinion was based on a medical
    history that was inadequate; (3) the examiner did not provide “sufficient rationale” for the conclusions
    that Mr. Applewhite’s heart murmur was benign and that there was no abnormality noted in his
    service medical records; (4) the examination was not “thorough and contemporaneous”; (5) the
    opinion was provided by a nurse practitioner; and (6) the opinion was not signed by a physician.
    Appellant’s Br. at 10. These arguments are without merit.
    The Secretary’s duty to assist a claimant includes, among other things, “providing a medical
    examination or obtaining a medical opinion when such an examination or opinion is necessary to
    make a decision on the claim.” 38 U.S.C. § 5103A(d)(1); see 38 C.F.R. § 3.159(c) (2010). The
    medical examination provided must be “thorough and contemporaneous” and consider prior medical
    examinations and treatment. Green v. Derwinski, 1 Vet.App. 121, 124 (1991). A medical
    examination “is adequate where it is based upon consideration of the veteran’s prior medical history
    and examinations and also describes the disability . . . in sufficient detail so that the Board’s
    ‘evaluation of the claimed disability will be a fully informed one.'” Stefl v. Nicholson, 21 Vet.App.
    3
    120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)). The Board may commit
    error requiring remand when it relies on an inadequate medical examination. See Ardison, 6 Vet.App.
    at 407 (holding that an inadequate medical examination frustrates judicial review).
  2. Failure to Determine the Ultimate Etiology of Medical Conditions
    A VA medical examination is not inadequate simply because it does not identify the ultimate
    etiology of a disability. See, e.g., Jones v. Shinseki, 23 Vet.App. 382, 390-91 (2010) (holding that a
    “legitimately inconclusive” VA medical examination is not inadequate so long as the examiner
    explains the basis for such an opinion or the basis is otherwise apparent in the Board’s review of the
    evidence).
    Moreover, to the extent that Mr. Applewhite argues that the VA medical examiner’s failure
    to identify the ultimate etiology of his hypertension and coronary artery disease rendered the
    examination inadequate, he misunderstands VA’s duty to assist. Pursuant to 38 U.S.C. § 5103A(d),
    VA must provide a medical examination or obtain a medical opinion “when such an examination or
    opinion is necessary to make a decision on the claim.” Here, VA requested a medical examination
    to determine whether it was “at least as likely as not that the claimed heart condition now diagnosed
    as coronary artery disease and hypertension is due to or the result of [an] in[-]service event[,] injury[,
    or] disease including functional systolic heart murmur.” R. at 537. In other words, VA determined
    that a medical examination was necessary to make a decision on the claims because the record
    otherwise lacked evidence of a medical nexus between Mr. Applewhite’s service and his current
    disabilities. See 38 U.S.C. § 1110 (stating that, to establish service connection, the record before the
    Secretary must contain lay or medical evidence of (1) a current disability, (2) incurrence or
    aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease
    and the current disability); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004);
    38 C.F.R. § 3.303 (2010). Although the VA examiner did not identify the ultimate etiology of Mr.
    Applewhite’s hypertension and coronary artery disease, the examiner did conclude that these
    conditions were not related to service, thus providing the medical opinion necessary to decide the
    claims.
    In addition, Mr. Applewhite does not argue that he was prejudiced in any way by the VA
    examiner’s failure to identify the ultimate etiology of his hypertension and coronary artery disease,
    4
    and, therefore, the Court concludes that he failed to carry his burden of demonstrating prejudicial
    error in this regard. See 38 U.S.C. § 7261(b)(2) (requiring the Court to “take due account of the rule
    of prejudicial error”); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); Hilkert v. West,
    12 Vet.App. 145, 151 (1999) (holding that the appellant has the burden of demonstrating error).
  3. Inaccurate Factual Premise
    Mr. Applewhite next contends that the May 2005 VA medical examination was inadequate
    because it was based on an inaccurate factual premise. Specifically, Mr. Applewhite asserts that the
    reported medical history upon which the examiner relied was inadequate because:
    [I]t consists only of (1) a report that [Mr. Applewhite] “had” a heart murmur during
    service, an inaccurate statement that [he] was “diagnosed” with a heart murmur during
    service (when in fact it was an “impression” by the examiner . . .), (2) notations of
    current diagnoses for heart disease and hypertension, and (3) reports that [he] currently
    suffered from chest pain.
    Appellant’s Br. at 9 (citations omitted). To the extent that Mr. Applewhite argues that the reported
    medical history lacks sufficient detail, a VA medical examiner is not required to comment on every
    favorable piece of evidence in a claims file. See Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994).
    Nevertheless, the medical examiner in this case reviewed Mr. Applewhite’s claims file, noted a history
    of heart murmurs, acknowledged a previous probable diagnosis of coronary artery disease, and
    demonstrated familiarity with Mr. Applewhite’s service medical records, including his separation
    examinations. R. at 537-38.
    In any event, Mr. Applewhite has not demonstrated how the examiner’s purportedly
    insufficient recitation of his medical history, including a reference to a “diagnosis” of a heart murmur
    instead of an “impression” of a heart murmur, is prejudicial, aside from making the conclusory
    statement that “[a] medical opinion which is founded upon an inaccurate factual premise is not
    probative.” Appellant’s Br. at 9 (citing Reonal v. Brown, 5 Vet.App. 458, 461 (1993). Therefore, the
    Court concludes that Mr. Applewhite has failed to carry his burden of demonstrating prejudicial error
    in this regard. See Hilkert, 12 Vet.App. at 151.
  4. Failure to Provide a Sufficient Rationale
    Further, Mr. Applewhite asserts that the examiner did not provide “sufficient rationale” for
    his conclusions that Mr. Applewhite’s heart murmur was benign and that there was no abnormality
    5
    noted in his service medical records. With regard to his first contention, the examiner stated that
    another name for a functional heart murmur is a benign murmur (also called an “innocent,
    physiological, nonphysiological, and functional murmur”), R. at 538 (citing DEGOWIN’S DIAGNOSTIC
    EXAMINATION), and explained that a functional murmur is benign because it “does not cause other
    types of problems,” R. at 539. See also DORLAND’S at 1208 (defining “functional murmur” as “a
    cardiac murmur generated in the absence of organic cardiac disease” and noting that it is also called
    an innocent, inorganic, or physiological murmur). The examiner then opined that “it is not likely that
    this type of murmur would cause any coronary artery disease.” R. at 539.
    In addition, to the extent that Mr. Applewhite contends that the examiner did not sufficiently
    explain his conclusion that there was no abnormality noted in the service medical records despite
    complaints of chest pain and a diagnosis of a heart murmur in service, Mr. Applewhite
    mischaracterizes the examiner’s conclusion. Specifically, the examiner stated that during two
    cardiology examinations prior to Mr. Applewhite’s separation from service, “[t]he only abnormality
    . . . noted [was] a functional murmur. No other abnormality was noted by the specialists at the time.”
    R. at 538. In support of this statement, the examiner explained that (1) Mr. Applewhite was
    diagnosed with a “functional heart murmur . . . with no disability related to the heart murmur”; (2)
    his chest x-rays and electrocardiograms”appeared to be normal at that time”; (3) his blood pressure
    was normal; (4) no other problems were noted at that time, including no gallop, tremor, or sweating;
    and (5) he was “a healthy young man.” R. at 537. In light of this evidence, and in the absence of any
    particular argument to the contrary, the Court concludes that Mr. Applewhite has failed to
    demonstrate that the examiner’s purportedly insufficient rationale prejudiced him. See Hilkert,
    12 Vet.App. at 151.
  5. Thorough and Contemporaneous Examination
    Mr. Applewhite also argues that the examination was not “thorough and contemporaneous”
    because “[t]he examiner did not thoroughly review [his] claims file in conjunction with issuing the
    report, as evidenced by [the examiner’s] failure to address the November 1972 VA finding that [Mr.
    Applewhite]’s heart murmur pre-dated service, and [his] report of occasional chest pain on preinduction
    examination.” Appellant’s Br. at 10. As noted above, the examiner was not required to
    explicitly refer to every favorable piece of evidence in Mr. Applewhite’s claims file. See Gabrielson,
    6
    7 Vet.App. at 40. Nevertheless, the examiner stated that he reviewed the claims file and, in the
    absence of evidence to the contrary, is presumed to have considered all evidence therein. See
    Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (“There is a presumption that VA
    considered all of the evidence of record.”). Therefore, the Court concludes that Mr. Applewhite has
    failed to demonstrate that the May 2005 VA examination was not thorough and contemporaneous.
    See Hilkert, 12 Vet.App. at 151.
  6. Examination Performed by a Nurse Practitioner
    Mr. Applewhite next contends that the May 2005 VA medical opinion was inadequate because
    it was provided by a nurse practitioner. The Court previously rejected this precise argument in Cox
    v. Nicholson, which held that “[a] nurse practitioner, having completed medical education and
    training, thus fits squarely into the requirement of [38 C.F.R.] § 3.159(a)(1) as one competent to
    provide diagnoses, statements, or opinions.” 20 Vet.App. 563, 569 (2007); see also 38 C.F.R.
    § 3.159(a)(1) (2010) (defining “competent medical evidence” as “evidence provided by a person who
    is qualified through education, training, or experience to offer medical diagnoses, statements, or
    opinions”).
    Although Mr. Applewhite attempts to discredit the examiner by citing to various Missouri
    statutes, this argument is unpersuasive. See Appellant’s Br. at 13-15. Specifically, the cited statute
    provides that a nurse practitioner is someone who performs “any act which requires substantial
    specialized education, judgment and skill based on knowledge and application of principles derived
    from the biological, physical, social and nursing sciences, including . . . (b) assessment, nursing
    diagnosis, nursing care, and counsel of persons who are ill, injured or experiencing alterations in
    normal health processes.” Mo. Ann. Stat. § 335.016(15)(b) (West 2011) (defining “professional
    nursing”) (emphasis added); see also id. § 335.016(7) (defining a “certified nurse practitioner as “a
    registered nurse who is currently certified as a nurse practitioner by a nationally recognized certifying
    body approved by the board of nursing”); id. § 335.016(16) (defining a “registered nurse” as “a person
    licensed pursuant to the provisions of this chapter to engage in the practice of professional nursing”).
    Despite the plain language of the statute, Mr. Applewhite attempts to distinguish a “nursing
    diagnosis” from a “diagnosis” by going outside of Chapter 335 of the Missouri Revised Statutes and
    relying on a broken link to a PowerPoint presentation from a lecture taught at Queens University of
    7
    Charlotte. See Appellant’s Br. at 14 (defining a “nursing diagnosis” as a “clinical judgment that
    identifies the client’s responses to a health state, problem or condition” and a “diagnosis” as
    “terminology used for a clinical judgment by the physician” that “identifies or determines a specific
    disease, condition, or pathological state” (quoting http://www.queens.edu/pdf/upload/nursing/
    nurs100lecture4.ppt)). Obviously, the Court is not bound by these definitions. Moreover, even if the
    Court were to accept these definitions as accurate, Mr. Applewhite fails to demonstrate why this
    distinction is prejudicial to him in light of the Court’s holding in Cox that a medical examination is
    not inadequate solely because it was performed by a nurse practitioner. See 20 Vet.App. at 569.
    Accordingly, the Court concludes that Mr. Applewhite failed to demonstrate prejudicial error in this
    regard. See Hilkert, 12 Vet.App. at 151.
  7. Unsigned Medical Examination
    Finally, Mr. Applewhite argues that the May 2005 VA medical opinion was inadequate
    because it was not signed by a physician. Although Mr. Applewhite is correct that the medical
    opinion was not signed by a physician, his argument nonetheless fails. See R. at 539.
    The VA Benefits Adjudication Procedure Manual Rewrite (M21-1MR), states that a VA
    medical examination report must be signed by a physician, unless the examination report was
    transmitted via the Compensation and Pension Record Interchange (CAPRI). See M21-1MR, pt. III,
    subpt. iv, ch. 3, § D-18(a) (July 14, 2010). The M21-1MR also provides that an unsigned or
    improperly signed examination report “must be returned as incomplete for rating purposes before
    undertaking any adjudicative action.” Id. § D-18(c).
    In Johnson v. Shinseki, 23 Vet.App. 344, 348 (2010), the Court addressed Mr. Applewhite’s
    precise argument and held that the presumption of regularity applies where a medical examination
    is missing a signature, such that the unsigned examination will be presumed to be transmitted through
    CAPRI and thus exempted from the signature requirement. See also Sthele v. Principi, 19 Vet.App.
    11, 16 (2004) (“[T]here is a presumption of regularity under which it is presumed that government
    officials ‘have properly discharged their official duties.'” (quoting Ashley v. Derwinski, 2 Vet.App.
    307, 308-09 (1992))). To rebut this presumption, the appellant must “demonstrate that the report was
    not transmitted via the CAPRI system, as permitted by the M21-1MR, or that it otherwise is
    inadequate.” Johnson, 23 Vet.App. at 348-49. Here, Mr. Applewhite only asserts that the medical
    8
    examination was not signed and that the examination itself does not bear any indication on its face
    that it was transmitted via CAPRI. However, as the Secretary points out, the medical examination
    contains a footer indicating that it was generated by the Veterans Information Systems and
    Technology Architecture (VISTA), which means that it was processed by the Automated Medical
    Information Exchange (AMIE). See Secretary’s Br. at 8. “CAPRI is a graphic user interface to
    enhance access of [AMIE] files” because it “is easier to learn and use than AMIE.” M21-1MR, pt.
    III, subpt. v, ch. 6, §§ G-30(a), G-32(a). Therefore, it appears that the medical examination was
    transmitted at least via AMIE, or, more likely, via CAPRI. Transmission via AMIE or CAPRI
    satisfies the intent of the provision of the M21-1MR regarding unsigned examination reports because
    transmission via these systems means that “signed copies are maintained by the Veterans Health
    Administration.” M21-1MR, pt. III, subpt. iv, ch. 3, § D-18(a); see also id. § D-18(g) (stating that
    an examination report is insufficient for rating purposes if it is unsigned unless transmitted via AMIE
    or CAPRI).

    In any event, Mr. Applewhite’s assertion that the medical examination was not signed and does
    not bear any indication on its face that it was transmitted via CAPRI is insufficient, without more, to
    rebut the presumption of regularity. See Johnson, 23 Vet.App. at 348 (holding that evidence that a
    medical examination was not signed and bore no indication that it was transmitted via CAPRI was
    not “the clear evidence of irregularity that is necessary to overcome the presumption of regularity”).
    Accordingly, the Court concludes that Mr. Applewhite has not carried his burden of demonstrating
    prejudicial error in this regard.2 See Hilkert, 12 Vet.App. at 151.
    Based on the foregoing, the Court concludes that the Board’s determination that the May 2005
    VA medical examination was adequate was not clearly erroneous. See 38 U.S.C. § 7261(a)(4);
    D’Aries v. Peake, 22 Vet.App. 97, 103 (2008); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
    Therefore, the Court concludes that the Board did not err in relying on this examination.
    2The Court notes that Mr. Applewhite’s prejudicial error argument refers to a disability that is not on appeal and
    not supported by the record: “In this case, [Mr. Applewhite] was prejudiced by the lack of a physician’s signature
    because it is unknown whether the examiner was competent to provide a diagnosis that considered the pathology of [his]
    left foot disability.” Appellant’s Br. at 13 (emphasis added). The Court reminds Mr. Applewhite’s counsel of her ethical
    duty to zealously represent her client and to avoid making misrepresentations to the Court. See MODEL RULES OF PROF’L
    CONDUCT R. 1.1 (Competence), 3.3 (Candor toward the tribunal); U.S. VET. APP. R. ADM. & PRAC. R. 4(a) (adopting
    the Model Rules of Professional Conduct as the Court’s “disciplinary standard”).
    9
    B. Aggravation of a Pre-existing Heart Condition
    Mr. Applewhite next argues that the Board erred when it failed to consider whether he was
    entitled to benefits for hypertension and coronary artery disease due to aggravation of his functional
    heart murmur. This argument is unpersuasive.
    Pursuant to 38 U.S.C. § 7252(a), the jurisdiction of this Court is “premised on and defined by
    the Board’s decision concerning the matter being appealed.” Ledford v. West, 136 F.3d 776, 779 (Fed.
    Cir. 1998). In this case, Mr. Applewhite did not make any specific arguments to the Board regarding
    aggravation of his preexisting heart murmur. Moreover, this issue was not reasonably raised by the
    record because there is no evidence of record that indicates a relationship between his heart murmur
    and his hypertension or coronary artery disease. Cf. R. at 539 (May 2005 VA medical opinion
    diagnosing Mr. Applewhite with a benign murmur that “does not cause other types of problems” and
    concluding that “it is not likely that this type of murmur would cause any coronary artery disease”);
    see also Robinson v. Peake, 21 Vet.App. 545, 552 (2008) (“[T]he Board is required to consider all
    issues raised either by the claimant, or by the evidence of record.” (citations omitted)), aff‘d sub nom.
    Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Thus, the Board’s decision does not contain
    any findings regarding this issue.
    In addition, the Board sua sponte determined that Mr. Applewhite’s “newly diagnosed
    coronary artery disease is clearly distinct from [his] heart murmur” and treated his current claims for
    benefits as “separate and distinct” from his previously denied claim for benefits for a heart murmur.
    R. at 4. In Boggs v. Peake, the U.S. Court of Appeals for the Federal Circuit held that “claims based
    upon distinctly diagnosed diseases or injuries must be considered separate and distinct claims.”
    520 F.3d 1330, 1337 (Fed. Cir. 2008); see also Ephraim v. Brown, 82 F.3d 399, 401 (Fed. Cir. 1996)
    (“[A] newly diagnosed disorder, whether or not medically related to a previously diagnosed disorder,
    can not be the same claim when it has not been previously considered.”)).
    Based on the foregoing, the Court will not exercise its discretion to consider in the first
    instance Mr. Applewhite’s argument regarding aggravation of his heart murmur. See Maggitt v. West,
    202 F.3d 1370, 1377-78 (Fed. Cir. 2000) (holding that this Court has jurisdiction to hear arguments
    presented to it in the first instance, provided that it otherwise has jurisdiction over the claim, and that
    the Court has discretion to hear or remand such arguments). Mr. Applewhite is of course free to
    10
    submit this argument to his local regional office. However, to the extent that this argument is related
    to Mr. Applewhite’s previously denied claim for benefits for a heart murmur, which is final, he will
    have to present new and material evidence sufficient to reopen that claim or file a motion for
    reconsideration of that claim based on clear and unmistakable error. See Cook v. Principi, 318 F.3d
    1334, 1339 (Fed. Cir. 2002) (en banc); see also 38 U.S.C. § 5108 (stating that a claim may be
    reopened upon presentation of “new and material evidence”); 38 U.S.C. § 7111(a) (stating that a
    Board decision is “subject to revision on the grounds of clear and unmistakable error”).
    III. CONCLUSION
    Upon consideration of the foregoing, the December 3, 2008, Board decision is AFFIRMED.
    DATED: April 6, 2011
    Copies to:
    Virginia A. Girard-Brady, Esq.
    VA General Counsel (027)
    11

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