Citation Nr: 1320923 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 12-15 101 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran served on active military duty from July 1969 to April 1971. This appeal arises to the Board of Veterans' Appeals (Board) from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In February 2012, the Veteran raised the issues of entitlement to service connection for post-traumatic stress disorder, depression, thrombocytopenia, and for skin rashes. At his hearing before the Board in May 2013, the Veteran raised the issue of entitlement to a kidney disorder due to hypertension. These issues have not been developed for appellate review and are therefore referred to the RO for appropriate disposition. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. A rating decision in March 2006, denied service connection for hypertension and VA properly notified the Veteran of that decision. The Veteran did not perfect an appeal to this decision. 2. Evidence received since the unappealed March 2006 rating decision raises a reasonable possibility of substantiating a claim for service connection for hypertension. 3. The evidence of record reflects that hypertension is related to the Veteran's military service. CONCLUSIONS OF LAW 1. New and material evidence having been received, the claim of entitlement to service connection for hypertension is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). 2. The criteria for service connection for hypertension are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). This is so because the Board is taking action favorable to the Veteran by granting the issue of entitlement to service connection for hypertension. 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). New and Material Evidence In an April 2005 rating decision, the RO denied hypertension, on the basis that hypertension was not shown in service or within the presumptive period. In October 2005, the Veteran submitted additional evidence for service connection for hypertension. In March 2006, the RO again denied service connection for hypertension. The Veteran was notified of this decision but did not appeal. Thus, the March 2006 RO rating decision is final. 38 U.S.C.A. § 7105. When a claim has been disallowed by the RO, the claim may not be reopened and allowed, and a claim based upon the same factual basis cannot be considered unless new and material evidence has been presented. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. New and material evidence can neither be 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. Id. The relevant evidence of record at the time of the March 2006 rating decision consists of service treatment records, private medical reports, and statements of the Veteran. The Veteran's service treatment records do not reflect any complaint of or treatment relating to hypertension. According to the service treatment records, the Veteran's blood pressure readings were within normal limits both at entrance and at discharge from active military service. In an August 2004 letter, R. Del Villar, M.D. reported first seeing the Veteran on August 26, 1972, upon a referral from another private physician, Dr. V. Bradley. According to Dr. Del Villar, Dr. Bradley had found arterial hypertension in "early 1971" and had also found a "small contracted" left kidney, which Dr. Del Villar removed in 1973. Dr. Del Villar has continued to treat the Veteran since that time. In a September 2004 letter, A. Falcon, M.D. reported that hypertension was found in 1971 and was referred to Dr. Del Villar for a nephrectomy that was performed in 1973. In an May 2005 letter, Dr. Del Villar explained that the diseased left kidney "could have been the reason of arterial hypertension. Dr. Bradley made this diagnosis. The contracted kidney was a result of the arterial hypertension. On the contrary, it could be the reason of the arterial hypertension." In an October 2005 report, R. Mangoo-Karim, M.D. noted that malignant hypertension was diagnosed in 1971, with the finding of left renal atrophy requiring a nephrectomy. The private medical reports indicate that on November 14, 1972, a left nephrectomy was scheduled for January 1973, although it states "for surgery 1-2-72 [sic]." A surgery report in January 1973, reflects that a nephrectomy was performed by Dr. Del Villar. The evidence submitted since the March 2006 decision includes private medical reports received on February 27, 2009. In a report dated in February 24, 2009, Dr. Falcon attributes the Veteran's hypertension to diabetes mellitus. Because service connection for diabetes mellitus has been established, the private report is sufficiently new and material to reopen the claim. It is neither cumulative nor redundant of any evidence considered in earlier rating decisions. Moreover, it raises a reasonable possibility of substantiating the claim. Accordingly, the evidence submitted is new and material evidence and the claim of entitlement to service connection for hypertension is reopened. Service Connection for Hypertension In this case, because the outcome is favorable to the Veteran, he will not be unfairly prejudiced by the Board's adjudication of the merits of the claim. Although the RO did not specifically state that it denied the veteran's claim on the basis that it was not well grounded, the Board concludes that this was not prejudicial to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In addition, service connection may 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). Moreover, in the case of cardiovascular-renal disease, to include hypertension, service connection is granted if such disease is manifested in service, or manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In the instant case, the Veteran's service treatment records are negative for complaints, findings, or diagnoses of hypertension. However, the evidence shows that hypertension was first diagnosed within one year after service discharge to a compensable degree. In an August 2004 letter, Dr. Del Villar states: [The Veteran] was initially seen on 8/26/72 referred to my office by Dr. Bradley. The reason for his referral was that he was found to have arterial hypertension early in 1971 when Dr. Bradley had done a baseline urological evaluation and this had shown a small contracted left kidney. I performed a nephrectomy on 01/02/73 and I have seen him periodically ever since. Dr. Del Villar's treatment records in September 1972, that the Veteran had recently underwent an arteriogram, with blood renin samples. In the January 1973 report of operation, the preoperative diagnosis was arterial hypertension, with left hypoplastic kidney. The discharge summary indicated that the Veteran was referred by Dr. Bradley because of a workup for arterial hypertension and a hypoplastic left kidney shown on arteriogram. The prognosis for hypertension was guarded as "[t]he chance of correcting it are very slim, about 30%." At his hearing before the Board in May 2013, the Veteran testified that immediately after his service discharge, he enrolled in a technical college. He reported that within eight to 10 months he began to feel sick and went to see Dr. Bradley who diagnosed high blood pressure and prescribed medication. Dr. Bradley then referred him to a kidney specialist. The testimony by the Veteran is competent evidence as to what he has actually observed and is within the realm of his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Moreover, the Board finds this testimony is credible and probative evidence. Id. The medical evidence of record shows that arterial hypertension was diagnosed in 1971. Moreover, the Veteran's testimony provides competent and credible evidence that within one year after service discharge he was prescribed medication for hypertension. 38 C.F.R. § 4.104, Diagnostic Code7101. Accordingly, entitlement to service connection for hypertension is warranted. ORDER Service connection for hypertension is granted. ______________________________________________ JOY A MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs