Citation Nr: 18157222 Decision Date: 12/12/18 Archive Date: 12/11/18 DOCKET NO. 09-46 141 DATE: December 12, 2018 ORDER An effective date of May 4, 2007, and no earlier, for the assignment of a separate 10 percent disability rating for hypertension secondary to service-connected diabetes mellitus, type II is granted. FINDINGS OF FACT 1. On May 4, 2007, the Veteran submitted a claim of entitlement to service connection for diabetes mellitus, type II. 2. By rating decision dated in April 2008, the Regional Office (RO) granted service connection for diabetes mellitus, type II, assigning a 20 percent disability rating effective May 7, 2007. 3. On April 2, 2009, within a year of the April 2008 rating decision, the Veteran submitted new and material evidence relating to the previously adjudicated claim that was not considered. 4. By rating decision dated in June 2010, the RO recharacterized the Veteran’s service-connected diabetes mellitus, type II to include hypertension and continued a 20 percent disability rating. 5. By rating decision dated in April 2018, the RO granted a separate 10 percent disability rating for the Veteran’s hypertension secondary to service-connected diabetes mellitus, type II effective April 2, 2008, one year prior to the Veteran’s April 2, 2009 submission. 6. The April 2008 rating decision never became final, and the Veteran’s original claim regarding diabetes mellitus and associated complications has remained pending since May 4, 2007. 7. During the pendency of the appeal period beginning May 4, 2007, the Veteran has had a history of diastolic blood pressure predominantly 100 or more, and continuous medication has been necessary for control of the Veteran’s hypertension for the entire period on appeal; but his hypertension has not been manifested by diastolic pressure predominantly 110 or more, or, systolic pressure predominantly 200 or more. CONCLUSION OF LAW The criteria for the assignment of an effective date of May 4, 2007, and no earlier, for the assignment of a 10 percent disability rating for hypertension are met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.156 (b), 3.400, 4.104, Diagnostic Code (DC) 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the United States Army from February 1970 to August 1973. He also served in the Army Reserve from February 1970 to October 1970 and October 1974 to February 1976. In addition, he had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Kansas Army National Guard from August 1973 to October 1974; the Texas Army National Guard from February 1978 to May 1978; the Missouri Army National Guard from May 1978 to February 1980 and April 1980 to September 1980; the Nebraska Army National Guard from September 1980 to March 1981; the Missouri Army National Guard from April 1981 to February 1982; and the California Army National Guard from February 1982 to February 1983. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from April 2008 and June 2010 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri and Wichita, Kansas. In December 2014, the Board remanded the issue concerning entitlement to a higher rating for service-connected diabetes mellitus, type II with hypertension to the Agency of Original Jurisdiction (AOJ) for additional development and adjudication. In August 2017, the Board continued a 20 percent disability rating for diabetes mellitus, type II but granted a separate 10 percent disability rating for hypertension effective April 2, 2008. This award was effectuated in an April 2018 rating decision. In July 2018, the Secretary of VA and a representative of the Veteran (parties) filed a Joint Motion for Remand (JMR). In the JMR, the parties agreed that the Board failed to provide an adequate statement of reasons and bases with respect to the effective date assigned for the award of a separate 10 percent disability rating for hypertension in the August 2017 decision. The basis of the JMR agreement was that the Board erred when it failed to consider 38 C.F.R. § 3.156(b) in determining the date of claim. Factual Background A review of the record shows that the Veteran was diagnosed with hypertension as early as 1995. Specifically, an August 1995 private treatment record indicates that the Veteran had a long history of hypertension. This record along with a January 2006 private treatment record indicate that his diastolic blood pressure was greater than 100 when he was not taking medication. As above, on May 4, 2007, the Veteran submitted a claim for service connection for diabetes mellitus, type II. Significantly, in connection with this claim, the Veteran was afforded a VA diabetes examination in December 2007 wherein the examiner noted that the Veteran had been diagnosed with hypertension four years prior to his diagnosis of diabetes but that the Veteran’s diabetes aggravated his hypertension. Specifically, it was noted that diabetes leads to a nephropathy that, at end stage, causes elevated blood pressure which will worsen other conditions which cause hypertension. By rating decision dated in April 2008, the RO granted service connection for diabetes mellitus, type II, assigning a 20 percent disability rating effective May 7, 2007. However, the Veteran was not service connected for hypertension at that time. On April 2, 2009, within a year of the April 2008 rating decision, the Veteran submitted a statement indicating that his diabetes had worsened and that he was being treated with insulin (four shots per day) and oral medications. The Veteran also wrote that he was being treated for a heart condition secondary to his diabetes. Subsequently, by rating decision dated in June 2010, the RO recharacterized the Veteran’s service-connected diabetes mellitus, type II to include hypertension and continued a 20 percent disability rating. As above, by rating decision dated in April 2018, the RO granted a separate 10 percent disability rating for hypertension effective April 2, 2008. Such award was based on 38 C.F.R. § 4.119, DC 7913, Note (1) which indicates that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating. For VA rating purposes, “hypertension” means that diastolic blood pressure is predominately 90 mm. or greater; “isolated systolic hypertension” means that the systolic blood pressure is predominately 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, DC 7101, Note 1. A 10 percent disability rating is warranted when diastolic pressure is predominantly 100 or more, or when continuous medication is shown necessary for control of hypertension with a history of diastolic blood pressure predominantly 100 or more, or when systolic pressure is predominantly 160 or more. A 20 percent rating is provided if diastolic pressure is predominantly 110 or more, or if systolic pressure is predominantly 200 or more. A 40 percent rating is awarded if diastolic pressure is predominantly 120 or more. A 60 percent rating is appropriate if diastolic pressure is predominantly 130 or more. Legal Criteria As a general rule, the effective date of an evaluation and award of VA disability compensation, based on an original claim or a request to reopen a claim, is the date of receipt of the claim or request or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i), (r); see Sutton v. Nicholson, 20 Vet. App. 419, 422 (2006). Subject to certain exceptions, it is also the rule that, when an RO properly notifies a claimant as to its decision on a claim, that decision becomes final if an appeal is not properly perfected. 38 C.F.R. § 20.1103; see 38 U.S.C. § 7105(c). The Federal Circuit has emphasized that VA has a duty to fully and sympathetically develop the Veteran’s claims to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. See Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). An initial claim remains pending when a claimant submits new evidence during the one-year appeal period because VA has “an express regulatory obligation to make a determination regarding the character of the new evidence the appellant submitted” under 38 C.F.R. § 3.156(b). Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). The Federal Circuit “reaffirmed that, under § 3.156(b), the VA must provide a determination that is directly responsive to the new submission and that, until it does so, the claim at issue remains open.” Id. A pending claim is an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c). The pending claims doctrine provides that a claim remains pending in the adjudication process-even for years-if VA fails to act on it. Norris v. West, 12 Vet. App. 413, 422 (1999). The Court has confirmed that raising a pending claim theory in connection with a challenge to the effective-date decision is procedurally proper. Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007). Analysis On review, the Board finds the appropriate effective date for the assignment of a separate 10 percent disability rating for hypertension is the day of the original claim for service connection for diabetes and associated complications, May 4, 2007. The record shows that the Veteran’s claim for service connection for diabetes mellitus was received on May 4, 2007, and that hypertension, to a degree of 10 percent disabling and secondary to diabetes mellitus, was present at that time. The Veteran’s April 2, 2009 statement regarding the severity of his diabetes and resulting heart conditions constituted new and material evidence which should have resulted in the readjudication of his claim. VA has an express regulatory obligation to make a determination regarding the character of newly submitted evidence. An initial claim remains pending, despite a subsequent final decision, until VA determines that evidence timely submitted after a decision on the initial claim was not new and material under 38 C.F.R. § 3.156(b). See Beraud, supra; Mitchell v. McDonald, 27 Vet. App. 431 (2015). As the RO did not readjudicate the claim, it remained pending. In light of the above, and the fact that the initial claim is still pending, the appropriate effective date is the day the Veteran’s original claim, May 4, 2007. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.156(b). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD April Maddox, Counsel