Citation Nr: 1004285 Decision Date: 01/28/10 Archive Date: 02/16/10 DOCKET NO. 09-17 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for hypertension. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from October 1972 to July 1974. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from adverse action by the Department of Veterans Affairs (hereinafter VA) Regional Office in Buffalo, New York, (hereinafter RO). In October 2009, a hearing was held before the Veterans Law Judge signing this document, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002). FINDINGS OF FACT 1. An April 2004 rating decision found that new and material evidence had not been received to reopen the Veteran's claim for service connection for hypertension; the Veteran was notified of this decision in that month but did not appeal. 2. Evidence received since the April 2004 rating decision raises a reasonable possibility of substantiating the claim for service connection for hypertension. 3. Hypertension is demonstrated in service and there is continuity evidence associated with this condition from service to the present time. CONCLUSIONS OF LAW 1. The April 2004 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2003). 2. Evidence received to reopen the claim of entitlement to service connection for a hypertension is new and material, and therefore, the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2009). 3. Resolving all reasonable doubt in the Veteran's favor, hypertension was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005). VA has issued regulations implementing the VCAA. 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2006). Without deciding whether the notice and development requirements of VCAA have been satisfied in the present case, it is the Board's conclusion that this law does not preclude the Board from adjudicating the claim on appeal. This is so because the Board is taking action favorable to the Veteran in the decision below. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2009). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre- existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303(a), 3.304. There are some disabilities, including cardiovascular disorders such as hypertension, for which service connection may be presumed if the disorder is manifested to a degree of 10 percent or more within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Where there is a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of: (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay- observable events or the presence of disability or symptoms of disability which may reasonably be observed by laypersons. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Pursuant to 38 U.S.C.A. § 5108, VA must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Kightly v. Brown, 6 Vet. App. 200 (1994). Only evidence presented since the last final denial on any basis, either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented, will be evaluated, in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). "New" evidence means existing evidence not previously submitted to VA. "Material" evidence means existing evidence that by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. An April 2004 rating decision found that new and material evidence had not been received to reopen the Veteran's claim for service connection for hypertension. The Veteran was notified of this decision in that month but did not appeal; as such, it is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2003). Notwithstanding any decision by the RO with respect to whether a claim is reopened, the Board must conduct an independent review of the evidence to determine whether new and material evidence has been received. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). After conducting this review, the Board concludes that new and material evidence has been received to reopen the claim for service connection for hypertension. This evidence consists of a VA clinical record dated in November 2009 that reported the Veteran "has a longstanding history of hypertension dating back to 1975 while in the [sic]." The examiner by this statement appears to be asserting that hypertension was first shown in service. In this regard, she also referenced the labile hypertension demonstrated during service as set forth below. Such evidence was not of record when the claim was previously considered. As such, when this evidence is considered in conjunction with all the evidence of record to be set forth below, the Board finds that the November 2009 VA medical report raises a "reasonable possibility" of substantiating the claim for service connection for hypertension. Accordingly, the claim for service connection for hypertension is reopened. Having reopened the claim, the issue now for consideration is whether service connection for hypertension may be granted. Blood pressure was normal at the September 1972 entrance examination. A November 1973 service treatment report showed blood pressure of 140/80 and "labile hypertension" was included among the defects and diagnoses noted on the May 1974 separation examination report, at which time blood pressure was recorded at 152/66. It was noted that over several days of testing, blood pressure readings were intermittently elevated but generally within the normal range. After service and within the one year presumptive period, a May 1975 VA examination indicates that blood pressure was recorded at 150-140/90 on a number of times. Review of the evidence thereafter shows some continuity evidence, to include blood pressure readings as follows: 190/110 and 150/100 in January 1976 with a history of high blood pressure noted; 144/90 and 186/90 in April 1976; 160/96 in July 1980; 146/96 in August 1980; and 160/110 in January 1981. Records reflect treatment with hypertensive medication from at least 2002 until the present time. (See eg. May 2009 VA clinic progress note and the previously referenced November 2009 VA clinical record, which shows the examiner reporting that she has been treating the Veteran with hypertension medication since May 2002). Unless the preponderance of the evidence is against the Veteran's claim, it cannot be denied. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 49. Thus, while more definitive evidence of continuity of hypertension would be helpful to the Veteran, given the elevated readings shown in service and within the one year presumptive period thereafter, the November 2009 statement from a VA medical professional placing the onset of the Veteran's hypertension within service or at least one year of service, and the consistently elevated readings in the years following service from 1976 to 1981, the Board find that the evidence is, at a minimum, in relative balance. Thus, without finding error in the RO's action, the Board will exercise its discretion to find that service connection for hypertension may be granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER The claim for service connection for hypertension is reopened and granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs