Citation Nr: 1331408	
Decision Date: 09/30/13    Archive Date: 10/02/13

DOCKET NO.  10-38 095	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Waco, Texas


THE ISSUE

Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for hypertension. 


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Matthew Blackwelder, Counsel
INTRODUCTION

The Veteran had active military service from January 1968 to December 1969 and from November 1990 to May 1991.

This appeal comes to the Board of Veterans' Appeals (Board) from a May 2009 rating decision. 

The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. 


FINDINGS OF FACT

1.  In an August 1992 rating decision, the Veteran's claim of entitlement to service connection for hypertension was denied; and he neither initiated an appeal nor submitted new and material evidence within a year of that rating decision.

2.  Evidence obtained since August 1992 is new and material.

3.  The evidence of record suggests that the Veteran's hypertension was caused or aggravated by a service connected disability.


CONCLUSIONS OF LAW

1.  The RO's August 1992 rating decision denying service connection for hypertension is final; new and material evidence having been presented, the claim is reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.200, 20.300, 20.1103 (2013). 

2.  Criteria for service connection for hypertension have been met.  38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  New and Material Evidence

The RO denied service connection for hypertension in an August 1992 rating decision, essentially concluding that the Veteran's had not been diagnosed with hypertension.  The Veteran was notified of the decision and provided his appellate rights, but did not appeal.  In addition, new and material evidence was not submitted within one year of either rating decision. See 38 C.F.R. § 3.156(b).  The Board acknowledges that several VA treatment records from 1991, and several service treatment records dated in 1993, have been added to the record since the 1992 decision.  See 38 C.F.R. § 3.156 (b), (c); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  However, none of these records show hypertension (in fact to the extent these records discuss the Veteran's blood pressure, they show non-hypertensive blood pressure readings and do not contain a diagnosis of hypertension) and therefore the records are not considered to be material evidence that would have precluded the unappealed rating decision from becoming final.  Therefore, the August 1992 rating decision is final. 

Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision.  38 U.S.C.A § 5108; 38 C.F.R. § 3.156.  "New" evidence means evidence "not previously submitted to agency decisionmakers."  38 C.F.R. § 3.156(a).  "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim."  Id.

As noted, the Veteran's claim was denied in 1992 because it was essentially found that he did not have hypertension.  Since that time, numerous treatment records have been advanced confirming that the Veteran does in fact currently have hypertension.  For example, at a May 2010 VA examination, the examiner stated that continuous medication was required to control the Veteran's hypertension.  Lay statements have also been advanced in support of the Veteran's contentions. 

This evidence is new in that it was not of record when the Veteran's claim was previously denied, and it is material in that it raises a reasonable possibility of substantiating the Veteran's claim.  Accordingly, the Veteran's claim is reopened.

II.  Service Connection

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury.  38 C.F.R. § 3.310.  Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated.  Allen v. Brown, 7 Vet. App. 439 (1995).  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  Id.  

In this case, the Veteran testified at a hearing before the Board in February 2013 at which it was largely discussed that the Veteran's hypertension was either caused or aggravated by one or both of his two service connected disabilities (chronic obstructive pulmonary disorder (COPD) and cardiomegaly).

The Board has reviewed the evidence of record, including extensive VA treatment records and several VA examinations reports and concludes ultimately that it is highly likely that the Veteran's service connected disabilities either caused or aggravated his hypertension.  Post-service treatment records clearly indicate such a connection, making it more likely than not that this disability was caused by the Veteran's service connected disabilities. 

Given this conclusion, the Board considers the criteria for service connection to have been met, and the Veteran's claim is therefore granted.

In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error).
 
ORDER

New and material evidence having been presented, the Veteran's claim of entitlement to service connection for hypertension is reopened.

Service connection for hypertension is granted.


____________________________________________
JOHN J. CROWLEY 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs