Citation Nr: 20022243 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 18-28 700 DATE: March 31, 2020 ORDER Entitlement to effective date of June 21, 1969, the day after the Veteran’s separation from active service, for the award of service connection for hypertension is granted. FINDING OF FACT 1. The Veteran separation from active service on June 20, 1969. 2. On June 25, 1969, the Department of Veterans Affairs (VA), then known as the Veterans Administration, received the Veteran’s claim for service connection for a heart murmur. 3. On July 30, 1969, VA received the Veteran’s claim of entitlement to service connection for hypertension. 4. A December 1969 rating decision denying service connection for a heart condition, though mentioning blood pressure readings, did not adjudicate the Veteran’s entitlement to service connection for hypertension. 5. In January 1970, the Veteran initiated an appeal of the December 1969 rating decision and indicated that his appeal was solely for the issue of his entitlement to service connection for a heart condition. 6. A July 1970 rating decision granted service connection for a heart condition but did not adjudicate the issue of the Veteran’s entitlement to service connection for hypertension. 7. On May 19, 2006, VA received a statement that it construed as being a claim for service connection for hypertension. 8. A July 2007 rating decision granted service connection for hypertension, effective from May 19, 2006. 9. The evidence demonstrates that the correct facts and applicable VA law were not considered in the assignment of a May 19, 2006 effective date for hypertension in the July 2007 rating decision as the claims file included undebatable evidence that the Veteran’s claim of service connection for hypertension had been pending since July 30, 1969. CONCLUSION OF LAW The criteria for entitlement to an effective date of June 21, 1969 for the award of service connection for hypertension based upon clear and unmistakable error in a July 2007 rating decision have been met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 5109A; 38 C.F.R. §§ 3.105(a), 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1966 to June 1969. Entitlement to Effective Date Earlier than May 19, 2006 for the Award of Service Connection for Hypertension The Veteran contends that he is entitled to an effective date earlier than May 19, 2006 because the effective date assigned in the July 2007 rating decision granting service connection for hypertension was CUE. In a May 2016 statement accompanying his May 2016 CUE claim, the Veteran notes that “nothing came” of his July 1969 claim for service connection for hypertension (claimed as high blood pressure). According to a February 2020 statement from the Veteran’s representative, his initial claim for service connection for hypertension was continuously pending and not adjudicated until an October 2006 rating decision that denied service connection for hypertension. That rating decision was reconsidered in light of new evidence added to the record, and a July 2007 rating decision granted entitlement to service connection for hypertension from May 19, 2006. The Veteran contends that the May 19, 2006 effective date is erroneous. Previous determinations that are final and binding will be accepted as correct. There are two exceptions to the rule of finality: the reopening of a claim based upon new and material evidence under 38 U.S.C. § 501 and revision of a decision based upon clear and unmistakable error (CUE) under 38 U.S.C. § 5109A. Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). In asserting a claim of CUE, a claimant must show that: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be “undebatable” and of the sort “which, had it 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 prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994). The Board agrees that there was CUE in assigning May 19, 2006 as the effective date for the grant of service connection for hypertension. First, the RO incorrectly applied the laws applicable to the assignment of effective dates at the time of the July 2007 rating decision. VA received the Veteran’s service connection claim for “heart trouble and high blood pressure” on July 30, 1969, which was within a year of his discharge from service. A December 1969 rating decision identified the issue decided therein as “service connection for heart condition”, and it did not identify entitlement to service connection for hypertension (high blood pressure) as an adjudicated issue. The only mention of hypertension was the Veteran’s blood pressure of 140/85 at discharge from active service. In other words, the Veteran’s claim for service connection for hypertension (high blood pressure) was still pending following the December 1969 rating decision. In addition, the Veteran’s January 1970 notice of disagreement did not address his claim of entitlement to service connection for hypertension but instead expressly addressed only his claim of service connection for a cardiac disorder. That claim was granted in a July 1970 rating decision, which unequivocally identified the issue adjudicated as “SC for heart condition.” Accordingly, the July 1970 rating decision did not adjudicate the Veteran’s claim of entitlement to service connection for hypertension either. Based on the foregoing, the July 30, 1969 claim was still pending on May 19, 2006 when the Veteran sought a higher rating for his service-connected heart disability and noted treatment for high blood pressure. When the VA granted the Veteran’s claim in July 2007, the applicable laws and regulations provided that the effective date for an award of direct service connection was the “[d]ay following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later.” 38 C.F.R. § 3.400(b)(2)(i). The Veteran’s July 1969 claim was received within 1 year of his separation from active service and had not been adjudicated. Thus, in assigning a May 19, 2006 effective date, the RO misapplied the laws and regulations applicable to the assignment of effective dates at that time. Second, the mistake regarding the Veteran’s date of claim is undebatable. None of the rating decisions prior to the October 2006 rating decisions identified entitlement to service connection for hypertension as a decided issue. While they discussed his blood pressure readings with respect to his claim of entitlement to service connection for a heart condition, previous rating decisions did not expressly deny or grant entitlement to service connection for hypertension. Third, the Board bases its conclusion of CUE in the July 2007 rating decision on the laws and regulations applicable as of July 2007. Had the RO noted the Veteran’s July 1969 claim and thought it had been adjudicated in either the December 1969 rating decision or the July 1970 rating decision, the RO should have—and likely would have—addressed whether the Veteran submitted new and material evidence warranting reopening of his claim. The RO never addressed this requirement, and this omission strongly suggests that the Veteran’s outstanding July 1969 was overlooked prior to the Veteran’s May 2016 CUE claim. In light of the foregoing, the July 2007 rating decision, insofar as it assigned an effective date of May 19, 2006 for the grant of service connection for hypertension, is clearly and unmistakably erroneous. The Veteran’s claim was received on July 30, 1969, within one year of his separation from active service. The record evidence at the time of the July 2007 rating decision showed that the Veteran satisfied the diagnostic criteria for hypertension based on his blood pressure recorded during his April 1969 separation examination and those taken in May 1969. See July 2007 VA examination. Thus, the proper effective date for the grant of service connection under the laws and regulations applicable as of the July 2007 rating decision is June 21, 1969, the day after the Veteran’s separation from active service. See 38 C.F.R. § 3.400(b)(2)(i) (2007). The July 2007 rating decision is thus amended to assign an effective date of June 21, 1969 for the grant of service connection for hypertension. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Douglas M. Humphrey, Associate 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.