Citation Nr: 20005233 Decision Date: 01/24/20 Archive Date: 01/22/20 DOCKET NO. 16-57 528 DATE: January 24, 2020 ORDER An effective date earlier than June 24, 2015, for the award of service connection for hypertension is denied. The January 2010 rating decision denying service connection for hypertension was not clearly and unmistakably erroneous, and the appeal is denied. FINDINGS OF FACT 1. A January 2010 rating decision denied service connection for hypertension, and the Veteran did not perfect an appeal or submit new and material evidence within one year of that decision. 2. The Veteran’s intent to file a claim for compensation was received on June 24, 2015, and his reopened claim for service connection for hypertension was received on November 30, 2015. 3. The January 2010 rating decision was supported by the evidence then of record and was consistent with the laws and regulations extant at that time. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than June 24, 2015, for the award of service connection for hypertension have not been met. 38 U.S.C. §§ 5110, 5107 (2012); 38 C.F.R. §§ 3.155(b)(1), 3.400 (2018). 2. The January 2010 rating decision denying service connection for hypertension was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1979 to February 1982 and from July 2003 to May 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board acknowledges that the Veteran has perfected an appeal of his claim for service connection for sleep apnea. However, the record shows that he is awaiting a hearing on that issue. As such, it will be the subject of a later Board decision, if ultimately necessary. Earlier Effective Date Unless specifically provided otherwise, the effective date of an award of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). The effective date of an award of compensation based on a claim reopened after a final disallowance will be the date of receipt of the claim to reopen, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2), (r). Prior to March 24, 2015, a “claim” was defined as a “formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.” 38 C.F.R. § 3.1(p) (2014). An informal claim included “[a]ny communication or action, indicating an intent to apply for one or more benefits . . .” 38 C.F.R. § 3.155(a) (2014). Claims filed on or after March 24, 2015, must be submitted on the application form prescribed by the Secretary. 38 C.F.R. § 3.1(p) (2018). If VA receives a complete application form prescribed by the Secretary (as defined in 38 C.F.R. § 3.160 (a)) appropriate to the benefit sought within one year of the receipt of an intent to file a claim, VA will consider the claim to have been filed as of the date the intent to file a claim was received. 38 C.F.R. § 3.155(b)(1). 1. Entitlement to an effective date earlier than June 24, 2015, for the award of service connection for hypertension The Veteran asserts that he is entitled to an effective date of September 2009 because that is when he first filed a claim for service connection for hypertension. Upon review of the record, the Board finds that an effective date earlier June 24, 2015, for the award of service connection for hypertension is not warranted. The Veteran initially filed a claim for service connection for hypertension in September 2009, which was denied in a January 2010 rating decision. The Veteran did not perfect an appeal or submit new and material evidence within one year of that decision. Therefore, the January 2010 rating decision became final. See 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.1103 (2018). Accordingly, it can only be revised through a successful claim of clear and unmistakable error (CUE). See 38 C.F.R. § 3.105 (2018); see also Cook v. Principi, 318 F.3d 1334, 1337 (Fed. Cir. 2002). The issue of whether there was CUE in the January 2010 rating decision is addressed below. No communication was received between the January 2010 rating decision and June 24, 2015 which may be interpreted as a formal or informal claim to reopen service connection for hypertension. On June 24, 2015, VA received an intent to file a claim for compensation. Thereafter, the Veteran’s formal application to reopen service connection for hypertension was received on November 30, 2015. In the February 2016 rating decision on appeal, service connection was granted for hypertension after an August 2015 VA examiner opined that the Veteran’s hypertension was related to service. As the Veteran’s reopened claim for service connection for hypertension was granted based on the receipt of new and material evidence received more than one year after the prior final denial, the effective date for the award of compensation should be the date VA received the Veteran’s intent to file a claim. See 38 C.F.R. §§ 3.155(b)(1), 3.400. Accordingly, an effective date earlier than June 24, 2015, is denied. CUE Previous determinations that are final and binding will be accepted as correct in the absence of CUE. 38 C.F.R. § 3.105(a); see also 38 U.S.C. § 5109A. CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In determining whether a prior determination involves CUE, the Court has established a three-prong test: (1) either the correct facts, as they were known at the time of the decision, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be “undebatable” and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). An allegation of CUE is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). There is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked, the presumption becomes even stronger. Fugo, 6 Vet. App. at 43-44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). Moreover, the benefit-of-the-doubt rule is not applicable in assessing a CUE motion. See Andrews v. Principi, 18 Vet. App. 177, 176 (2004) (citing Russell, 3 Vet. App. at 313). 2. Whether there was CUE in the January 2010 rating decision denying service connection for hypertension The Veteran asserts that the January 2010 rating decision denying service connection for hypertension was clearly and unmistakably erroneous because it stated that he “did not have record or evidence in [his] service treatment records for hypertension on active duty,” and “[t]he current award acknowledges documented proof of hypertension treatment while in service.” Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and hypertension becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For purposes of VA compensation, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. Upon review of the record, the Board finds that no CUE was committed in the January 2010 rating decision. The January 2010 rating decision denied service connection for hypertension because there was no evidence of treatment for hypertension during active duty service, and the record failed to show that the Veteran’s current hypertension was related to his active duty service. Service treatment records from both of the Veteran’s periods of active duty show no treatment for or diagnosis of hypertension during service. Blood pressure readings taken in October 2003 were 127/80 and 157/85. Eight months after the Veteran’s discharge from his second period of active duty, his blood pressure was noted to be elevated at 150/89 during a January 2005 periodic Reserve examination. The Veteran denied any history of high or low blood pressure on an accompanying report of medical history. The record shows that the Veteran was first diagnosed with hypertension in January 2007. As the record did not show a diagnosis of hypertension during service or within one year of service or otherwise link the Veteran’s hypertension to his active duty service, the Board finds that the January 2010 rating decision was supported by the evidence then of record and consistent with the laws and regulations extant at that time. Service connection for hypertension was subsequently granted in February 2016 after an August 2015 VA examiner opined that it was at least as likely as not that the Veteran’s current hypertension was related to service. In support of this, the examiner explained that although the Veteran was not diagnosed with hypertension until 2007, service treatment records showed elevated blood pressure, and the Veteran reported taking blood pressure medication ever since. To the extent the Veteran claims that VA erred in failing to provide him with a VA examination pursuant to his initial claim for service connection for hypertension, “VA’s breach of the duty to assist cannot form a basis for a claim of CUE because such a breach creates only an incomplete rather than an incorrect record.” Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). (Continued on the next page)   Based on the foregoing, the Board finds that the January 2010 rating decision did not contain CUE, and the appeal must be denied. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banister, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.