Citation Nr: 1327029 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 11-17 879 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension. 2. Entitlement to service connection for hypertension. 3. Entitlement to an initial evaluation in excess of 10 percent for sensorimotor radiculopathy, right arm. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to August 1998. This matter comes before the Board of Veterans' Appeals (Board) from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The issue of entitlement to an initial evaluation in excess of 10 percent for sensorimotor radiculopathy, right arm, is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a November 1999 rating decision, a RO denied a claim of entitlement to service connection for hypertension. That decision is now final. 2. The evidence associated with the claims file subsequent to the November 1999 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for hypertension and raises a reasonable possibility of substantiating the claim. 3. The Veteran's hypertension had its onset in service. CONCLUSIONS OF LAW 1. The criteria for reopening the claim for service connection for hypertension have been met. 38 U.S.C.A. §§ 5103, 5103A, 5107(b), 5108, 7104 (West 2002); 38 C.F.R. §§ 3.156, 3.159 (2012). 2. The criteria for service connection for hypertension have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Sufficient evidence is of record to reopen and grant in full the Veteran's claim of entitlement to service connection for hypertension. Accordingly, whether or not VA has met its duties of notice and assistance is of no consequence, as there is no prejudice to the Veteran. New and Material Evidence to Reopen Claim The Veteran is claiming service connection for hypertension. Service connection for such disability was first denied by the Huntington, West Virginia, RO in a November 1999 rating decision. That rating decision was not appealed and is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2012). The Veteran attempted to reopen his claim in September 2003. A claim may be reopened and reviewed if "new and material" evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 . "New" evidence is evidence not previously submitted to agency decision-makers, and "material" evidence is evidence that, by itself or when considered with the 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(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened, and VA may then evaluate the merits of the claim on the basis of all evidence of record. The requirement that new and material evidence raise a reasonable possibility of substantiating the claim is a very low threshold and should be read as enabling reopening, rather than precluding it. Shade v. Shinseki, 24 Vet. App. 110 (2010). The November 1999 rating decision denied the claim for service connection for hypertension on the basis that the Veteran did not have a confirmed diagnosis of hypertension. The record now contains a January 2004 VA examination report that contains a diagnosis of arterial hypertension and notes that the Veteran had been on medication for his hypertension since 2003. This medical evidence provides a confirmed diagnosis of hypertension that was not of record at the time of the November 1999 rating decision and thus addresses an unestablished fact. The evidence received since the November 1999 rating decision is new and material and reopening the claim is warranted. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as cardiovascular-renal disease to include hypertension, are presumed to have been incurred in service, if the condition becomes manifest to a degree of ten percent or more within a one-year presumptive period, following service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. The Veteran's service treatment records show that he had elevated blood pressure readings on multiple occasions. A May 1998 treatment record noted his history of "borderline BP" and that "has required 5 day BP checks in past but no meds." It was recommended that his blood pressure be closely followed. On VA examination in September 1999, the examiner noted a history of hypertension since 1980, with the Veteran not on medication. Blood pressure readings were 120/80, 136/80, and 122/100. A stress test was conducted. The examiner noted that the Veteran's diastolic blood pressure was slightly elevated at rest and after exertion. "If the mild BP elevation persists a mild antihypertensive substance might be indicated." The examiner diagnosed labile hypertension. A March 2003 VA treatment record noted hypertension. On VA examination in January 2004, the examiner noted a history of onset of intermittent blood pressure elevation during active service, with September 1999 VA examination showing hypertensive dysregulation and arterial hypertension. The Veteran had been put on antihypertensive mediation in April 2003 and used it constantly since. Blood pressure readings of 158/102, 158/100, and 160/105 were noted. The examiner diagnosed arterial hypertension, ongoing as labile hypertension since at least 1999 and continuously treated since 2003. The Veteran had elevated blood pressure readings during service and labile hypertension was noted on VA examination approximately 13 months after his separation from active duty. He has been treated for arterial hypertension since 2003 and the January 2004 VA examiner noted that his current arterial hypertension had been "ongoing as labile hypertension since at least 1999." While an official diagnosis of hypertension was not made while the Veteran was on active service, nor was such a diagnosis made within the one year presumptive period as outlined under 38 C.F.R. §§ 3.307, the Board nevertheless finds that competent, credible, and probative medical evidence of record establishes that hypertension first manifested on active service, and has persisted since that time. The sole negative evidence of record, the lack of a hypertension diagnosis in service or within the one year presumptive period, is not probative in light of the evidence of continuity of symptomatology documented in the post-service medical record. In sum, based on the findings of elevated blood pressure in service, and the medical records documenting continued elevated blood pressure since separation, the Board finds that service connection for hypertension is warranted. ORDER New and material evidence has been received, and the claim of service connection for hypertension is reopened. Service connection for hypertension is granted. REMAND The Veteran contends that his service connected sensorimotor radiculopathy, right arm, warrants a higher evaluation than the 10 percent assigned. His representative has requested a current examination, pointing out that the only examination of record was conducted in January 2004, nearly 10 years ago. The Board agrees that a current examination is necessary in order to properly evaluate the Veteran's disability. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the current severity of his service-connected sensorimotor radiculopathy, right arm. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. All required testing is to be accomplished. The examiner is to identify all symptoms attributable to the Veteran's service-connected sensorimotor radiculopathy, right arm, and discuss the extent, if any, of paralysis of the nerve(s) involved. A comprehensive report, including complete rationales for all conclusions reached, must be provided. 2. Then, readjudicate the appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs