Citation Nr: 1327686 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 11-23 352 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for hypertension. 2. Entitlement to service connection for hypertension. 3. Entitlement to an increased rating for degenerative arthritis at L5-S1, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from September 1961 to March 1986. He also served with the National Guard. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from an April 2009 rating decision of the VA Regional Office in Nashville, Tennessee that declined to reopen the claim of entitlement to service connection for hypertension and denied an increased rating for lumbosacral degenerative arthritis. Following review of the record, the issues of entitlement to service connection for hypertension, and to an increased rating for lumbosacral arthritis are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Service connection for hypertension was denied by a July 1986 rating decision; the appellant did not appeal this determination and it is final. 2. The Veteran attempted to reopen the claim of entitlement to service connection for hypertension in February 2002. 3. VA declined to reopen the claim by rating decision in June 2002 and the Veteran did not appeal; this determination is final. 4. Evidence received since the June 2002 rating decision denying entitlement to service connection for a hypertension relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The June 2002 rating decision denying entitlement to service connection for hypertension is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for hypertension. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate a claim. 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating that claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c) (2012). In view of the Board's decision to reopen the claim of entitlement to service connection for hypertension, further notice and assistance is unnecessary to aid the appellant in substantiating this aspect of the appeal. See Wensch v. Principi, 15 Vet.App. 362 (2001). Pertinent Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 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 is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may legitimately be questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303. Service connection for certain diseases, such as hypertension, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of the disease during the period of service. Id. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt is defined as doubt that exists because of an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2012). Factual Background and Legal Analysis Service connection for hypertension was originally denied in a July 1986 rating decision. The Veteran did not file an appeal. He attempted to reopen the claim in February 2002 with the submission of additional evidence. VA declined to reopen the claim of service for hypertension by rating dated in June 2002. These decisions are final. 38 U.S.C.A § 7105. The Board must therefore review all of the evidence submitted since the June 2002 final disallowance to determine whether the appellant's claim of entitlement to service connection should be reopened and re-adjudicated de novo. See Evans v. Brown, 9 Vet.App. 273 (1996). A claim that is the subject of a final decision can be reopened upon the submission of new and material evidence. 38 U.S.C.A. § 5108. New evidence is defined in 38 C.F.R. § 3.156(a) as evidence not previously submitted to agency decision makers. 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. In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet.App. 510, 513 (1992). Factual Background and Legal Analysis The evidence that was of record prior to the RO's June 2002 rating decision includes service treatment records showing that the Veteran's blood pressure fluctuated in the months prior to retirement from active duty. In early March 1985, he underwent a blood pressure evaluation where it was noted that he had been seen the previous week and had a diastolic reading of 100. On examination, blood pressure readings obtained over the course of five days ranged between 140/90 and 120/80 with diastolic pressures predominantly in the 80s. Some two weeks later in March 1985 when being seen for foot trauma, a blood pressure reading of 158/102 was recorded. Ten days later, a reading of 150/108 was shown for the left arm. Blood pressure readings in July and September 1985 were 150/90 and 132/99, respectively. On examination in November 1985 for retirement from service, the appellant's blood pressure was 144/92. The summary of defects included borderline hypertension. Subsequent thereto, it was reported that on retirement physical examination, his blood pressure ranged from 144/92 to 138/96. A five-day blood pressure check was requested. On evaluation, it was noted that the appellant had had borderline increased blood pressure for several months but was on no antihypertensive medication. Readings obtained during this period ranged between 136/102 and 120/80. An impression of borderline elevated blood pressure was recorded. A claim of entitlement to service connection for hypertension was received in April 1986. Pursuant thereto, the Veteran was afforded a VA examination in June 1986. On evaluation of the cardiovascular system, blood pressure readings ranged between 130/70 and 114/88. The examiner stated that the Veteran did not have high blood pressure on that occasion and did not have high blood pressure on his retirement physical examination. Following examination, the diagnoses included "no hypertension." Subsequently received were private clinical records dated between 1991 and 2002 in which blood pressure readings were within the normal range except for a single occasion in September 2000 when a blood pressure reading of 150/94 was recorded. It was noted that his blood pressure was borderline elevated again. It was also reported at that time that there was no history of hypertension. No diagnosis of hypertension is recorded during the 1991-2002 time frame. Evidence added to the record following the June 2002 denial of the claim to reopen consists of extensive private records dating from 2001 showing treatment for various complaints and disorders over the years. In March 2009, a diagnosis of essential hypertension is recorded. Thereafter, the appellant continued to carry that diagnosis was shown to have been prescribed hypertension medication. The Board has carefully reviewed the record and finds that the provisions of 38 C.F.R. § 3.156 are applicable in this matter. At the time of the June 2002 rating decision in June 2002, service treatment records reflected that the Veteran had fluctuating blood pressure readings, and was noted to have borderline hypertension on service retirement examination in November 1985. However, at a June 1986 VA examination the appellant's blood pressure was within normal limits. The examiner stated that the appellant did not have hypertension at that time or at retirement from service. Subsequent private clinical records did not reflect a diagnosis of hypertension. In June 2002, VA determined that as there was no diagnosis of hypertension, there was no disability for which service connection might be granted. However, more recent private clinical evidence received in support of the claim demonstrates a diagnosis of hypertension in March 2009 for which the Veteran began to receive treatment. The diagnosis of hypertension was not of record at the time of the prior denial. Such a diagnosis supports the claim in a manner not previously demonstrated. Such evidence is new and material and serves as a basis to reopen and reconsider the claim of entitlement of service connection for hypertension under 38 C.F.R. § 3.156. As such, the claim is reopened. ORDER New and material evidence has been received; the claim of entitlement to service connection for hypertension is reopened. REMAND As noted previously, the Veteran now has a diagnosis of hypertension which he relates back to borderline hypertension is service. The record reflects that he has not had a VA examination that addresses whether current hypertension is related to elevated symptoms shown in service. As such, the record is not sufficiently developed in this regard and a VA examination must be scheduled. The Board is prohibited from making conclusions based on its own medical judgment. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991). The Veteran should thus be afforded a VA examination, to include a clinical opinion in this regard. The Veteran also asserts that the symptoms associated with his service-connected lumbosacral spine disorder are more severely disabling than reflected by the currently assigned disability evaluation of 20 percent and warrant a higher rating. The record reflects that the Veteran was most recently afforded a VA spine examination for compensation and pension purposes in 2009. He has submitted several statements in the record, most recently in August 2011 that symptoms associated with degenerative arthritis at L5-S1 are significantly worse. Given the Veteran's contentions that his symptoms warrant a higher disability rating and are worse, and the fact that he has not been examined by VA for more than four years, a new examination is in order. The Court has held that when a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. 38 C.F.R. § 3.326 (2012). Accordingly, the case is REMANDED for the following actions: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO must attempt to retrieve all pertinent VA and any other pertinent records that have not previously been added to the record since 2009. All attempts to secure this evidence must be documented in the claims file. If the RO cannot locate these records, it must document the attempts that were made to locate them, and explain in writing why further attempts to locate or secure them would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to retrieve; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Thereafter, schedule the appellant for a VA examination by an appropriate physician to determine whether hypertension is related to service. The claims folder and access to Virtual VA must be made available to the examiner. Clinical findings should be reported in detail. Following the examination the examiner must opine whether it is at least as likely as not current essential hypertension relates back to symptoms in service. A complete rationale must be provided for the opinion provided. 3. Further, schedule the Veteran for a VA orthopedic examination to evaluate the severity of lumbar degenerative arthritis. The claims folder and access to Virtual VA must be made available to the examiner. All indicated tests and studies should be conducted and clinical findings, to include range of motion studies, should be reported in detail. The examiner should indicate whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the service-connected back disorder, and to what extent the Veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use. A complete rationale must be provided for any opinion offered. 4. The Veteran is to be notified that it is his responsibility to report for VA examination, to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 5. After the development requested has been completed, the RO must review any examination report to ensure that it complies with the directives of this REMAND. If any report is insufficient or deficient in any manner, corrective procedures must be implemented before return to the Board. 6. After taking any further development deemed appropriate, readjudicate the claims. If a benefit is not granted, issue a supplemental statement of the case before returning the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs