Citation Nr: 0305692 Decision Date: 03/26/03 Archive Date: 04/03/03 DOCKET NO. 00-19 269 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to an effective dater earlier than May 14, 1999, for the resumption of VA compensation for a service- connected low back condition. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Richard V. Chamberlain, Counsel INTRODUCTION The veteran had active service from July 1958 to July 1966. An October 1970 RO decision denied the veteran's initial claim for service connection for hypertension. He was not notified of his right to appeal that decision. Hence, his initial claim for service connection for hypertension is still pending. Woods v. Gober, 14 Vet. App. 214 (2000). This appeal comes to the Board of Veterans' Appeals (Board) from February 2000 and later RO decisions that denied service connection for hypertension and determined that the veteran was entitled to the resumption of VA compensation for his service-connected low back disorder, effective from May 14, 1999. In April 2002, the RO notified the veteran's ex-wife that VA did not have the authority to withhold benefits from the veteran's compensation for her. In correspondence dated in August 2002, she appealed that determination. A review of the record does not show that the RO replied to the August 2002 correspondence from the veteran's ex-wife. This matter is referred to the RO for appropriate action. FINDINGS OF FACT 1. The veteran's blood pressure readings in his second period of active service were elevated. 2. His blood pressure readings since separation from his second period of active service have continuously been elevated. 3. An October 1967 RO rating decision granted service connection for a lumbosacral and left sacroiliac strain and assigned a 40 percent evaluation for this condition, effective from July 1966. 4. In April 1971, the veteran elected to received benefits from the Office of Workers' Compensation Programs (OWCP), formerly the Bureau of Employees' Compensation, for lumbosacral and sacroiliac strain, his only service-connected compensable disability at that time, in lieu of the VA compensation being paid for such a disability. 5. The veteran's VA compensation was terminated, effective April 30, 1971, and he was awarded benefits from the OWCP, effective from November 16, 1969 for a low back disability; the amount of compensation VA overpaid him from November 16, 1969 to April 30, 1971, was collected by the OWCP. 6. On May 14, 1999, the RO received correspondence from the veteran inquiring about VA benefits, and in a telephone contact with a VA representative in October 1999 he reported that he was no longer receiving benefits for his low back disorder from the OWCP and that he had notified VA of the termination of those benefits in 1976. 7. Correspondence from the OWCP received in 2000 shows that the veteran's benefits were terminated in May 1976. 8. There is no correspondence in the veteran's claims folder received after April 1971 before May 14, 1999, notifying VA that he was no longer receiving benefits from the OWCP or requesting compensation for a low back disability. CONCLUSIONS OF LAW 1. Hypertension was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303. 2. The criteria for an effective date prior to May 14, 1999, for resumption of VA compensation for a service-connected low back disability are not met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.400, 3.708 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5103, 5103A, 5107, and 5126, and codified as amended at 5102, 5103, 5106 and 5107 (West 1991 & Supp. 2002)) redefined VA's duty to assist a veteran in the development of a claim. Guidelines for the implementation of the VCAA that amended VA regulations were published in the Federal Register in August 2001. 66 Fed. Reg. 45620 (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2002)). The Board finds that all relevant evidence has been obtained with regard to the veteran's claims for service connection for hypertension and an earlier effective for the resumption of VA compensation for the service-connected low back disorder, and that the requirements of the VCAA have in effect been satisfied. The veteran has been provided with examinations to determine the nature and extent of hypertension. He and his representative have been provided with a statement of the case and supplemental statement of the case that discuss the pertinent evidence, and the laws and regulations related to the claims, that essentially notify them of the evidence needed by the veteran to prevail on the claims. There is no identified evidence that has not been accounted for and the veteran's representative has been given the opportunity to submit written argument. In a March 2001 letter, the RO notified the veteran of the evidence needed to substantiate his claim for service connection for hypertension. This letter gave notice of what evidence the veteran needed to submit and what evidence VA would try to obtain. Under the circumstances, the Board finds that the veteran has been provided with adequate notice of the evidence needed to successfully prove his claims and that there is no prejudice to him by appellate consideration of the claims at this time without a prior remand of the case to the RO for providing additional assistance to the veteran in the development of his claims as required by the VCAA or to give the representative another opportunity to present additional evidence and/or argument. Bernard v. Brown, 4 Vet. App. 384 (1993). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). In this case, the extensive record on appeal demonstrates the futility of any further evidentiary development and that there is no reasonable possibility that further assistance would aid him in substantiating his claims. Hence, no further assistance to the veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Furthermore, with regard to the claim for an earlier effective date for the resumption of VA compensation for the service-connected low back disorder, the Board finds that this claim is predicated largely on legal principles rather than evidence. As such, the Board finds no basis for additional evidentiary development. Manning v. Principi, 16 Vet. App. 534 (2002). I. Service Connection for Hypertension A. Factual Background The veteran had active service from July 1958 to July 1962 in the U.S. Navy and from July 1962 to July 1966 in the U.S. Air Force. Service medical records reveal that the veteran underwent a medical examination in July 1958 for enlistment into the U.S. Navy. His blood pressure was 130/70. He underwent a medical examination in June 1962 for separation from service. His blood pressure was 120/76. These records do not show the diagnosis of hypertension. Service medical records show that the veteran underwent a medical examination in July 1962 for enlistment into the U.S. Air Force. His blood pressure was 140/70. In June 1966, he underwent medical examination for separation from service. His blood pressure was 140/82. These records do not show a diagnosis of hypertension. VA and private medical records show that the veteran was treated and evaluated for various problems from 1967 to 2002. The more salient medical reports related to the issues considered in this appeal are discussed in the appropriate sections. The veteran underwent VA examinations in August 1967. His blood pressure was 160/88. Hypertension was not diagnosed. Private medical records show that the veteran's blood pressure was recorded on numerous occasions from January 1987 to July 1989. All recordings reveal diastolic pressure of 90 or more and systolic pressure of 140 or more except a recording on March 12, 1987, that was 132/80. A private medical report shows that the veteran was evaluated in April 1997. A history of coronary artery disease of about 6 years was noted. It was noted that the veteran had used Cardizem in the past, but he had stopped taking that for several years. A history of hypertension was noted. His blood pressure was 148/84. A private medical report dated in April 2002 reveals that the veteran has elevated blood pressure. The signatory, a medical doctor, reported first seeing the veteran in January 1999 and that the veteran was on Cardizem at that time. His blood pressure was 160/98 in January 1999, and continued to be elevated since then. B. Legal Analysis In order to establish service connection for a disability, the evidence must demonstrate the presence of it and that it resulted from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Where hypertension becomes manifest to a degree of 10 percent within one year from date of termination of active service, it shall be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Hypertension means persistently high arterial blood pressure. Medical authorities have suggested various thresholds for high blood pressure, such as a systolic reading of 140 and a diastolic reading of 90. Dorland's Illustrated Medical Dictionary 635 (26th ed. 1981). With this in mind, the evidence of record reveals that the veteran has had consistent hypertension since his second period of active service. The question now for the Board to decide is whether the lack of evidence demonstrating continuous elevated blood pressure readings from 1967 to 1987 is sufficient to deny the veteran's claim for service connection for hypertension based on the lack of evidence demonstrating continuity. In the judgment of the Board, the overall evidence is essentially in equipoise as to whether or not the veteran has had continuous hypertension since his second period of service. Under the circumstances, the veteran prevails with application of the benefit-of-the-doubt doctrine in his favor. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hence, the evidence supports granting service connection for hypertension, and the claim is granted. II. Entitlement to an Effective Date earlier than May 14, 1999, for Resumption of VA Compensation for a Service- Connected Low Back Disability The factual background regarding the claim for entitlement to an earlier effective date for the resumption of VA compensation for a service-connected low back disability may be briefly summarized. At VA examinations in August 1967, the veteran was found to have lumbosacral and left sacroiliac strain, and a history of herniated vertebral disc syndrome with sciatica. An October 1967 RO rating decision granted service connection for lumbosacral and left sacroiliac strain. A 40 percent rating was granted for this condition, effective from July 1966. In April 1971, the RO received the veteran's election to receive benefits from the OWCP in lieu of the VA compensation for the lumbosacral and sacroiliac strain. Correspondence from the OWCP received in 1971 shows that the veteran was awarded benefits for residuals of lumbosacral and sacroiliac strain, effective from November 16, 1969, and that they would collect an overpayment of VA compensation to the veteran from that date until May 1, 1971. At that time, the veteran's only compensable service-connected disability was the low back disorder. On May 14, 1999, the RO received correspondence from the veteran inquiring about VA benefits. A report of telephone contact in October 1999 between the veteran and a VA representative reveals that the veteran was no longer receiving benefits from the OWCP, that he now wanted the resumption of his VA compensation for a low back disorder, and that he reported notifying the VA in 1994 about the termination of benefits from the OWCP. Correspondence received from the Office of Workers' Compensation in 2000 reveals that the veteran last received benefits from them for a low back condition in May 1976. A review of the record does not show receipt of correspondence from the veteran from April 1971 prior to May 14, 1999, notifying VA of the termination of his benefits from the OWCP or requesting resumption of VA compensation for a low back disorder. The Federal Employees' Compensation Act (FECA) as amended (5 U.S.C.A. § 8101 et seq.) provides for the payment of workers' compensation benefits to civilian officers and employees of all branches of the Government of the United States. 20 C.F.R. § 10.00 (2002). Where a veteran is entitled to compensation from OWCP based on civilian employment and is also entitled to compensation under laws administered by VA for the same disability, he must elect which benefit he will receive. On or after September 13, 1960, an award of VA benefits cannot be approved for payment of compensation concurrently with compensation from OCWP and, in such instances; an election to receive benefits from either agency is final. There is no right of reelection. 38 C.F.R. § 3.708(b)(1). There is no prohibition against payment of benefits under FECA concurrently with other benefits administered by VA when such benefits are not based on the same disability. 38 C.F.R. § 3.708(b)(2). While a veteran may not reelect to receive VA compensation for a disability after making an election to receive benefits from OWCP for the same disability, there is no bar to payment of VA benefits for the disability on which the benefits from the OWCP were predicated after those benefits end. Department of Veterans' Benefits Manual, M21-1, Part IV, Chapter 20.19c(3). The effective date of an award of compensation based on a reopened claim shall be based on the facts found, but shall not be earlier than the date of VA receipt of the reopened claim with new and material evidence. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(ii). In this case, the veteran essentially asserts that the VA compensation for his low back condition should be resumed from May 1976 when the benefits he was receiving for that condition from the OWCP were terminated. He alleges in effect that VA should have known what another federal agency was doing and had the duty to notify him of his entitlement to resumption of VA compensation at that time. A review of the record reveals that the veteran's VA compensation for the low back disability was terminated in 1971 after he elected to receive benefits for that disability from the OWCP, effective from November 16, 1969. The evidence reveals that the benefits he was receiving from the OWCP for the low back disability were terminated in May 1976, but the evidence does not show that VA was notified of the termination of those benefits until October 1999. Nor does the evidence show that the veteran applied for resumption of VA compensation for the back disability at any time from April 1971 prior to May 14, 1999. In order to receive VA disability benefits, the veteran needs to submit a claim for such benefits. 38 C.F.R. § 3.151 (2002). An informal request for a benefit may also be accepted as a claim. 38 C.F.R. § 3.155 (2002). A review of the evidence based on the above criteria indicates that the resumption of the veteran's VA compensation for a low back disability, effective from May 14, 1999, was correct. The veteran has pointed to no law, regulation or court decision that supports a different conclusion. The VA's duty to notify a veteran of potential benefits has been interpreted as the duty to provide notice when VA is aware or reasonably should be aware that an individual is potentially entitled to such benefits. Lewis v. Brown, 8 Vet. App. 287 (1995); VAOPGCPREC 17-95. The record does not show that VA had any knowledge of the veteran's potential entitlement to resumption of VA compensation for a low back disorder until October 1999 and processed his claim for such benefits at that time. Hence, it cannot be concluded that VA breached its duty to notify the veteran of his potential entitlement to restoration of VA compensation for the service-connected low back disability. The preponderance of the evidence is against the claim for an effective dater earlier than May 11, 1999, for the resumption of VA compensation for a service-connected low back disability, and the claim is denied. (CONTINUED ON NEXT PAGE) ORDER Service connection for hypertension is granted. An effective date earlier than May 14, 1999, for the resumption of VA compensation for the service-connected low back disability is denied. ___________________________________________ J. E. Day Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.