Citation Nr: 1750004	
Decision Date: 11/03/17    Archive Date: 11/13/17

DOCKET NO.  13-13 117	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Regional Office


THE ISSUES

1.  Whether new and material evidence has been presented to reopen a previously denied claim for entitlement to service connection for hypertension, to include entitlement to service connection for hypertension.

2.  Entitlement to service connection for heart murmur.

3.  Entitlement to service connection for right leg pain.

4.  Entitlement to service connection for left leg pain.


REPRESENTATION

Veteran represented by:	American Red Cross



ATTORNEY FOR THE BOARD

S. Finn, Counsel


INTRODUCTION

The Veteran had active service from November 1979 to September 1988. 

This matter came before the Board of Veterans' Appeals (Board) on appeal from various rating decisions of the Denver, Regional Office (RO).

The issues of bilateral leg pain and a heart murmur are REMANDED to the AOJ.  VA will notify the Veteran if further action is required.


FINDINGS OF FACT

1.  The Veteran's claim for hypertension was last denied in a September 1996 Board decision.  She did not appeal and the decision became final. 

2.  Since then, new and material evidence has been received that relates to unestablished facts that are necessary to substantiate the claim, and it is reopened.

3.  The Veteran was diagnosed with hypertension in July 1988 and has recently been diagnosed with disabling hypertension.

4.  The medical evidence of record is in equipoise to warrant a finding that hypertension was first manifested and became chronic during service and disabling post-service.



CONCLUSIONS OF LAW

1.  The September 1996 Board decision is final.  New and material evidence has since been received, and the claim for hypertension is reopened.  38 U.S.C.A. §§ 1110, 5107(b), 5108 (West 2014); 38 C.F.R. §§ 3.102, 3.104, 3.156, 20.1100 (2016).

2.  The criteria for service connection for hypertension have been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In general, VA decisions that are not timely appealed are final.  See 38 U.S.C.A. §§ 7104 (b), 7105 (West 2014); 38 C.F.R. §§ 20.1100, 20.1103 (2016).  A finally disallowed claim may be reopened when new and material evidence is secured with respect to that claim.  38 C.F.R. § 3.156 (2016).  "New" evidence is evidence not previously submitted to agency decisionmakers.  Evidence is "material" if it 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, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156 (a) (2016).

The Veteran's claim for service connection for hypertension was denied in a September 1996 Board decision because the evidence did not show disabling hypertension.  She did not appeal that decision and it is now final.  Since then, evidence shows she has disabling hypertension.  This is new and material and raises the possibility of substantiating the claim.

The Veteran maintains that her currently diagnosed hypertension was incurred in service.

Upon review of all the evidence of record, both lay and medical, the Board finds that the evidence is in equipoise as to whether chronic hypertension was incurred during her active duty service.

The Board notes that, for VA purposes, hypertension is defined as diastolic blood pressure predominantly 90mm or greater, and isolated systolic hypertension means systolic blood pressure that is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm.  38 CFR § 4.104, Note (1).

During service, blood pressure readings included 110/60 in November 1979; 110/80 and 115/80 in August 1982; 140/(diastolic illegible) and 124/96 in October 1982; 100/70 in September 1983; 120/74 in November 1986; 113/74 and 143/85 in December 1987; and 112/59 in January 1988.  In May 1988, the Veteran was seen for complaints of nausea, vomiting and diarrhea.  Her blood pressure initially was 174/92.  On examination, her blood pressure was 174/97, lying down 140/104 standing.  It was noted that a follow-up examination would be conducted after her illness for a five-day period pressure "check."  Further evaluation revealed blood pressure readings of 154/90 lying, 152/102 sitting and 154/102 standing.  A May 1988 follow-up examination for "isolated systolic hypertension" revealed her blood pressure 118/70 in the morning and 100/78 in the afternoon.  Examination led to the conclusion that she was non-hypertensive and that she had experienced a viral elevated blood pressure.  On examination in June 1988 for separation from service, her blood pressure was 118/84.  

However, a July 1988 STR reflects that a physician diagnosed her with hypertension that was controlled without medication.

Post-service VA treatment records from 2003 to the present show confirmed diagnoses of hypertension, albeit, controlled by medication.  Although an April 2012 VA examiner found no nexus to service.  The examiner's rationale was based on a factual inaccuracy (that she was diagnosed in 2003).  The examiner stated that except for an episode of increased blood pressure in May 1988 associated with an acute viral condition with nausea, vomiting and diarrhea, which normalized once she recovered from this condition, the Veteran's blood pressure readings during service were normal.  However, the Board points out that a military physician diagnosed her with hypertension, which was controlled at that time.  Therefore, the service records would not necessarily show increased blood pressures (particularly if hypertension was controlled).  Therefore, the Board does not afford the opinion any probative weight.

The Veteran's lay statement that hypertension has been chronic, even though intermittent, since service, is consistent with the evidence of record, and is credible.  Since the evidence is in equipoise, reasonable doubt is resolved in the Veteran's favor.  38 U.S.C.A. § 5107 (b).  Accordingly, service connection for hypertension is warranted.


ORDER

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

Service connection for hypertension is granted.


REMAND

With regard to bilateral leg pain and a heart murmur, the records reflect that the Veteran has participated in vocational rehabilitation training.  It is unclear if these records have a diagnosis of a leg disability and/or heart murmur.  (See April 2002, June 2015, September 2016 VA 21-8940).  In Moore v. Gober, 10 Vet. App.436, 440 (1997), the United States Court of Appeals for Veterans Claims held that where it is a matter of record that a veteran has received benefits under the education and vocational rehabilitation program, the Board is on notice that such records exist and is obligated to obtain and consider them.  Accordingly, on remand, the Veteran's vocational rehabilitation records, in particular any medical or vocational evaluations administered, should be associated with the Veteran's e-folder.


Accordingly, the case is REMANDED for the following action:

1.  Associate all records related to the Veteran's participation in VA's Education and Vocational Rehabilitation Program, including any medical or vocational evaluations, with her claims folder.

2.  Thereafter, the RO should readjudicate the issues in appellate status.

The Veteran 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 2014).




_________________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2016).



Department of Veterans Affairs