Citation Nr: 1334388	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO.  07-15 616	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hypertension; and if so, whether the claim should be granted.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Michel, Associate Counsel




INTRODUCTION

The Veteran served on active duty from August 1978 to February 1982 and from December 1986 to June 1994. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 decision of the RO in San Juan, the Commonwealth of Puerto Rico. 

Here, the Board notes that the RO, in a July 1995 rating decision, denied in pertinent part, a claim of entitlement to service connection for hypertension.  

As the Veteran's hypertension claim had been adjudicated in July 1995 and thereafter became final, the Board notes that, before reaching the merits of the Veteran's claim, the Board must first rule on the matter of reopening of the claim.  That is, the Board has a jurisdictional responsibility to consider whether it is proper for the claims to be reopened.  See Jackson v. Principi, 265 F.3d 1366 at 1369   (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  The issue has therefore been styled as set forth above. 

Subsequent to the April 2007 statement of the case, additional evidence relevant to the Veteran's claim was associated with the Veteran's claims file.  The Veteran's representative waived initial RO consideration of this evidence.  As such, the Board will consider this evidence in reviewing the Veteran's claim. 

In his April 2007 Substantive Appeal (on VA Form 9, Appeal to the Board), the Veteran requested that he be afforded a hearing conducted before a Veteran's Law Judge at the RO.  Prior to being scheduled for a hearing, the Veteran, in a September 2007 statement, withdrew his request for a Board hearing and requested instead a hearing before a RO hearing officer.  38 C.F.R. § 20.704(e).  The Veteran was scheduled for an RO hearing on December 3, 2007, but he reportedly failed to attend the hearing and thereafter the case was certified to the Board. 

In June 2008, the Board received a note from the Veteran indicating he was requesting a hearing before the Board so that the Board could hear his case for new evidence before the Board reaches a decision on his case.

In July 2010, the Board remanded the Veteran's claim to afford him a hearing before a Veterans Law Judge at the RO.  Ultimately, the Veteran submitted correspondence in May 2012 requesting that his appeal be decided on the evidence of record without a hearing.  Thereafter, a hearing was scheduled for April 2013 but the Veteran failed to report.  As such, the Veteran's request for a hearing is deemed withdrawn.  38 C.F.R. § 20.702(d).

The Board notes that there is an electronic "Virtual VA" claims file in addition to the paper claims file.  Review of the electronic file was completed to ensure thorough review of the evidence of record.

The issue of service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  A July 1995 rating decision denied the Veteran's claim of service connection for hypertension.

2.  No evidence was received within a year of that decision, and the Veteran did not perfect an appeal of the decision.

3.  Evidence received since the time of the final July 1995 rating decision is new, related to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for hypertension.


CONCLUSION OF LAW

The July 1995 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). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The RO originally denied service connection for hypertension in a July 1995 rating decision.  The Veteran was notified of these decisions and provided his appellate rights, but he did not perfect his 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).  Therefore, this rating decision became 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.

In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1991).

The July 1995 rating decision denied the claim of service connection for hypertension because, in pertinent part, service medical records showed elevated blood pressure readings but were negative for complaints of or treatment for hypertension.

However, since the July 1995 denial, evidence has been submitted showing that the Veteran has been diagnosed with hypertension.  See VA treatment records.

To establish service connection for hypertension, there must be, among other things, medical evidence of a current disability.  The evidence showing hypertension was not of record at the time the Veteran's claim was previously denied and it is therefore new.  Moreover, because it shows the presence of a current disability, a cornerstone of any claim for service connection, the evidence is considered to be material. 

Accordingly, the claim of entitlement to service connection for hypertension is reopened.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).

Given the fully favorable decision with respect to the issue of whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for hypertension, the Board finds that discussion of the VCAA notice provided to the Veteran is unnecessary, since any deficiency in the timing or content of such notice would constitute harmless error. 


ORDER

New and material evidence having been submitted, the Veteran's claim for entitlement to service connection for hypertension is reopened, and to that extent only, the appeal is granted.


REMAND

The Board is of the opinion that additional evidentiary development is required before the Veteran's claim is decided.

In May 2006, the Veteran submitted a statement, asserting that his hypertension began in service.

Service treatment records show elevated blood pressure readings.  A separation examination in April 1994 noted borderline hypertension with blood pressure at 140/96.

VA and private treatment records show current diagnoses of uncontrolled hypertension.

Given these findings, the duty to provide an adequate VA medical examination is triggered.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  In this regard, the Veteran should be scheduled for a VA examination to determine if his hypertension either began during or was otherwise caused by his military service, to include the one year presumptive period following service.

Accordingly, the case is REMANDED for the following action:

1.  Provide the Veteran's claims file to an appropriate VA examiner.  If the examiner determines that an examination is necessary to address the Board's inquiry, one should be scheduled.  The examiner should provide a detailed rationale for the requested opinions.

The examiner is requested to render an opinion as to whether the Veteran has hypertension, and if so, whether it is at least as likely as not (50 percent probability or greater) that such hypertension either began during or was otherwise caused by the Veteran's military service.  

The examiner should also state whether the evidence shows that hypertension was diagnosed, or diagnosable, within one year of the Veteran's separation (that is by June 1995).

In so doing, the examiner should specifically consider the blood pressure readings taken in service, as well as the April 1994 assessment of borderline hypertension at the Veteran's separation physical.

2.  Then readjudicate the appeal.  If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response.

The Veteran 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.

______________________________________________
MATTHEW W. BLACKWELDER 
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs