Citation Nr: 1340367	
Decision Date: 12/06/13    Archive Date: 12/20/13

DOCKET NO.  12-15 947	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

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

2.  Entitlement to service connection for hypertension.

3.  Entitlement to service connection for end-stage renal disease, to include as secondary to hypertension.


REPRESENTATION

Appellant represented by:	Javier A. Centonzio, Attorney


ATTORNEY FOR THE BOARD

L. Reeder, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1976 through September 1996.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.


FINDINGS OF FACT

1.  The claim for service connection for hypertension was denied in a December 1996 rating decision.  The Veteran did not appeal the decision, and no new and material evidence was received during the appeal period; thus, the decision became final.

2.  The evidence received since the December 1996 rating decision is new and raises a possibility of substantiating the claim.

3.  The preponderance of the evidence shows that the Veteran's current hypertension had its onset in service.

4.  The preponderance of the evidence shows that end-stage renal disease is secondary to the Veteran's hypertension.


CONCLUSIONS OF LAW

1.  The December 1996 rating decision denying service connection for hypertension is final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013).

2. Evidence added to the record since the September 1996 rating decision is new and material.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).

3.  The criteria for service connection for hypertension are met.  38 U.S.C.A. §§ 1110, 1131, 1154(a) (West 2002); 38 C.F.R. § 3.303 (2013).

4.  The criteria for service connection for end-stage renal disease are met.  38 U.S.C.A. § 1110, 1131, 1154(a) (West 2002); 38 C.F.R. § 3.303, 3.310 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Assist

In this decision, the Board reopens and grants service connection for hypertension, and also grants secondary service connection for end stage renal disease, which represents a complete grant of the benefits sought on appeal.  As such, no discussion of VA's duty to notify and assist is necessary.

II.  Claim to Reopen

The Veteran's claim of entitlement to service connection for hypertension was last denied by way of a December 1996 rating decision.  The Veteran did not appeal the rating decision and no new and material evidence was received within the appeal period; therefore, that decision is final.  See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013); see also Bond v. Shinseki, 659 F.3d 1362   (Fed. Cir. 2011).  In April 2010, the Veteran submitted a request to reopen this claim; however, as the 1996 decision is final, new and material evidence is required to reopen this claim.

Generally, a claim that has been denied by the Board may not thereafter be reopened and allowed.  38 U.S.C.A. § 7104(b).  The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.

New evidence is defined as existing evidence not previously submitted to agency decisionmakers.  Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

The evidence considered in the December 1996 rating decision consisted of the Veteran's service treatment records (STRs).  The stated basis of the denial was that the Veteran's claimed disability neither occurred in nor was caused by service, and that the STRs failed to show that the Veteran's blood pressure readings were outside of the normal range to establish hypertension.

New evidence added to the record since the December 1996 rating decision includes 2010 and 2013 medical opinions addressing the connection between the Veteran's current hypertension and his military service and alleging that his hypertension arose during service.  Accordingly, this evidence relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the Veteran's claim.  It is therefore material and sufficient to reopen the previously-denied claim.  38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156 (2013).

III.  Service Connection

The Veteran seeks service connection for hypertension, and for end-stage renal disease as secondary to hypertension.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (2013).    Generally, in order to establish service connection, there must be competent, credible evidence of (1) the existence of a present disability, (2) 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.  See 38 C.F.R. § 3.303 (2013); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  Service connection may also be established for disability which is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(a) (2013). 

The medical evidence of record establishes current diagnoses of both hypertension and end stage renal disease during the appeal period.  Therefore, the Board's analysis will focus on the additional elements required to substantiate claims for direct service connection for hypertension and secondary service connection for end stage renal disease.

The examiner who conducted the 2010 VA hypertension examination provided a negative opinion, and stated that there was "no medical documentation to show [the Veteran] met the criteria to diagnose hypertension during military service."  She based this opinion on her observation that the Veteran did not have elevated blood pressure on either his entrance or separation examinations, and that he reported no history of high or low blood pressure.  She did note that he had an elevated blood pressure reading with no treatment in December 1983.

In contrast to the VA examiner's opinion, two private medical professionals opined that the Veteran's current hypertension began in service, and went on to address the likely causation of the Veteran's current end stage renal disease.  A nephrologist who treated the Veteran after his kidney transplant submitted several letters in 2010 opining that the Veteran appeared to have hypertension dating back to 1983.  He stated that the Veteran's records indicated "persistently elevated blood pressure while in service," and that his hypertension clearly began while he was on active duty.  The nephrologist indicated that the Veteran's hypertension contributed to his renal disease.

A second private medical opinion was provided in 2013 by a nurse and consultant.  She pointed out various elevated diastolic readings in the Veteran's service treatment records that met the criteria for a diagnosis of hypertension, including three consecutive elevated readings in November and December 1983, as well as elevated readings in 1993 and in April 1996, the month after the Veteran's separation examination.  She also pointed out that the December 1983 note of elevated blood pressure includes the examiner's recommendation for weight reduction, and stated that such non-pharmacologic treatment can lower blood pressure, and that medication management is not necessarily initiated for mild hypertension.  Additionally, she addressed the VA examiner's assertion that there is no medical documentation to show the Veteran met the criteria for a diagnosis of hypertension while in service, pointing out that hypertension can be diagnosed based on elevation of either systolic or diastolic blood pressure.  She opined that the Veteran's "current diagnosis of hypertension more likely than not began while on active duty," and that "his current diagnosis of hypertension is more likely than not related to his in-service elevated BP readings, which met criteria for a diagnosis of hypertension."  

Turning to the Veteran's end-stage renal disease, the consultant stated that hypertension is "a significant risk factor for renal injury and end-stage renal disease."  Her evaluation of the claims file included reference to a February 2000 note by an examining physician who noted "possible hypertensive nephropathy."  She opined that "it is more likely than not the [V]eteran's current diagnosis of end-stage renal disease with kidney transplant was caused by his long-standing history of hypertension, which began during military service."

In determining the probative value to be assigned to a medical opinion, the Board must consider whether the medical expert was fully informed of the pertinent factual premises of the case, whether the medical expert provided a fully articulated opinion, and whether that opinion is supported by a reasoned analysis.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  

The Board finds that the 2013 private medical opinion is most probative on the elements in dispute; namely, in-service incurrence of a disability, nexus, and, for the Veteran's end stage renal disease, proximate cause.  Although the nurse who provided the 2013 private opinion did not examine the Veteran, her analysis and discussion of the Veteran's medical history indicates she was fully informed of the pertinent factual premises of the case.  Her opinion included reasoned analyses and discussion of pertinent facts in the case file linking the Veteran's hypertension to his service, and linking his end-stage renal disease to his hypertension.  In contrast, the VA medical examination did not address many of the relevant facts in the Veteran's claims file, including multiple elevated blood pressure readings in service, and included only a sparse rationale for the negative nexus opinion.

Based on the above, the most probative evidence of record in this case indicates that service connection is warranted on a direct basis for hypertension, and on a secondary basis for end-stage renal disease.


ORDER

Service connection for hypertension is granted.

Service connection for end-stage renal disease is granted.




____________________________________________
M. N. HYLAND
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs