Citation Nr: 20034434 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 12-07 810 DATE: May 18, 2020 ORDER An effective date prior to October 12, 2007, for the award of service connection for hypertension is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for hypertension for the period prior to December 19, 2011, is remanded. FINDINGS OF FACT 1. The Veteran submitted an application for compensation in July 1997, on which he did not specify any disabilities for which he was claiming service connection but noted “please see service medical record.” In an October 1997 letter, the Veteran’s claim was denied. 2. The Veteran’s service treatment records do not reasonably identify hypertension as a disability. 3. The Veteran’s claim for service connection for hypertension was received at VA on October 12, 2007. No formal or informal claim for hypertension was received prior to October 2007 that was not adjudicated in the October 1997 letter. CONCLUSION OF LAW The criteria for the assignment of an effective date earlier than October 12, 2007, for the award of service connection for hypertension have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155(a), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Army for 20 years, from May 1977 to June 1997. In November 2018, the Board denied entitlement to an effective date earlier than October 12, 2007, for the award of service connection for hypertension and denied entitlement to a rating in excess of 10 percent for hypertension prior to December 19, 2011. The Veteran appealed the issues to the United States Court of Appeals for Veterans Claims (Court), and in November 2019, the Court granted a Joint Motion for Partial Remand (JMPR), vacating and remanding the issues. 1. Earlier effective date for the award of service connection for hypertension. In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). The law grants a period of one year from the date of the notice of the result of the initial determination for initiating an appeal by filing a notice of disagreement; otherwise, that determination becomes final and is not subject to the revision on the same factual basis in the absence of clear and unmistakable error (CUE). 38 U.S.C. § 7105; 38 C.F.R. § 3.105(a). In this case, the Veteran submitted an application for compensation (VA Form 21-526) on July 14, 1997. He did not specify any disabilities for which he was claiming service connection. Rather, in box 19A, which directed the Veteran to list the nature of sickness, disease, or injury, the Veteran wrote “please see service medical record.” On July 24, 1997, VA sent the Veteran a letter requesting information before his claim could be adjudicated. Specifically, information on “the type of illness, disease, or injury for which you are claiming benefits” was requested. The Veteran did not respond to the letter. In October 1997, the Veteran was sent another letter notifying him that because VA had not received information on the type of illness, disease, or injury for which the Veteran was claiming benefits, his claim was denied. The Veteran did not respond to the letter. The next correspondence from the Veteran occurred 10 years later, on October 12, 2007, when he again submitted an application for compensation. He indicated that he was requesting service connection for, in pertinent part, high blood pressure. Service connection was granted in a June 2016 Board decision. In a June 2016 rating decision, the Regional Office (RO) implemented the Board decision, granting service connection for hypertension and assigning a noncompensable (zero percent) rating effective October 12, 2007. The Veteran appealed the effective date for the award of service connection, and in November 2018, the Board denied entitlement to an earlier effective date. The Veteran appealed the Board decision to the Court. In a November 2019 JMPR, the Veteran asserted that his service treatment records (STRs) reasonably identified hypertension, and as such, he was entitled to an earlier effective date for the grant of service connection under Sellers v. Wilkie, 30 Vet. App. 157, 163 (2018) (holding that “[a]s a general principle, VA may not ignore in-service diagnoses of specific disabilities, even those coupled with a general statement of intent to seek benefits, provided those diagnoses are reasonably identifiable from a review of the record). The parties agreed that the Board erred by failing to provide an adequate statement of reasons or bases for its finding that any earlier effective date for the hypertension was not warranted because it did not make any specific factual finding as to whether the Veteran’s STRs reasonably identified hypertension. Under Diagnostic Code 7101, for hypertensive vascular disease (hypertension and isolated systolic hypertension), hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Hypertension means that the diastolic blood pressure is predominantly 90mm or greater. Isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). The Board notes that “predominantly” is not defined in the Rating Schedule; however, the Board understands it to have its ordinary meaning of “for the most part,” or “mainly.” See Merriam-Webster’s Collegiate Dictionary, 978 (11th ed. 2012). The Board finds that the Veteran’s STRs do not reasonably identify hypertension as a disability. In a December 1976 service enlistment examination, the Veteran’s systolic blood pressure was 110 and his diastolic blood pressure was 70 (110/70), and he denied having a history of high or low blood pressure. His blood pressure was measured as 122/80 in January 1979 and 126/86 in August 1979. In May 1980, the Veteran’s blood pressure was noted to be 138/100, indicating an elevated diastolic blood pressure; however, his diastolic blood pressure was not elevated in subsequent readings in March 1981 (120/78), September 1981 (118/74), June 1982 (120/76), and June 1983 (108/70). In a July 1983 examination, the Veteran’s blood pressure was 128/98 and he was noted to have an elevated diastolic blood pressure; however, there does not appear to be any follow-up records related to the elevated blood pressure and his diastolic blood pressure was not elevated in September 1984 (120/80), February 1986 (128/80), or June 1986 (120/80). In March 1987, the Veteran’s blood pressure was 140/90 and 142/98, again indicating an elevated diastolic blood pressure; however, subsequent readings in June and August 1987 were 110/70, 112/80, and 116/70. In January 1988, the Veteran’s blood pressure was noted to be 130/100; however, his diastolic blood pressure was not noted to be elevated in subsequent STRs dated in April 1989 (128/82), July 1989 (124/78), April 1990 (120/80), October 1990 (124/84), September 1991 (120/81), November 1991 (120/82), April 1992 (110/86), May 1992 (129/68), February 1993 (142/86), April 1993 (114/78), or December 1993 (104/89 and 128/86). In January 1994, the Veteran’s blood pressure was 124/72. In an optometry appointment a few weeks later, the Veteran was noted to have a history of high blood pressure. He did not take medication, his blood pressure varied, and he was “borderline hypertensive.” In December 1994, his blood pressure was 110/82. In November 1995, the Veteran’s blood pressure was 138/92. In a January 1996 examination, the Veteran’s blood pressure was 122/92 (sitting) and 120/90 (standing). In an accompanying January 1996 report of medical history, the Veteran denied having a history of high or low blood pressure. In February 1996, the Veteran was counseled on the health risks of having high blood pressure. In March 1996, his blood pressure was 122/73, in July 1996 it was 120/90, and in September 1996 it was 120/80. In a February 1997 separation examination, the Veteran’s blood pressure was 115/80 and the examination report is silent for mention of high blood pressure or hypertension. In an accompanying report of medical history, the Veteran indicated that he did not know whether he had or ever had high or low blood pressure. In April 1997, his blood pressure was 119/90. Finally, the Board notes that a document included in the Veteran’s STRs titled “Treatment While in Service, from 13 May 77 to 1 July 97” lists more than 50 instances of medical treatment and is silent for mention of high blood pressure or hypertension. Post-service private treatment records indicate that in a March 2001 new patient evaluation for a complaint of chest pain, the Veteran denied having hypertension. He was assessed as having possible angina, but the treatment record was silent for mention of symptoms or diagnosis of hypertension. In March 2005, the Veteran reported having episodic left chest pain for a few weeks, as well as elevated blood pressure. His blood pressure was noted to be 142/100. The treatment record notes that the Veteran’s blood pressure would be checked in five days to confirm hypertension and he would begin treatment if it remained elevated. In April 2005, the Veteran was noted to have mild hypertension and he was started on lisinopril. In sum, the Board finds that STRs do not demonstrate that the Veteran’s systolic blood pressure was predominantly 160 or more, or that his diastolic pressure was 90 or more. STRs, including more than 40 blood pressure readings, do not show a single systolic reading of 160 or more. They do indicate several instances of diastolic pressure being 90 or more, including in May 1980, July 1983, March 1987, January 1988, November 1995, July 1996, and April 1997. However, the Board does not find that these instances rise to the level of “predominantly.” Rather, the Board finds it significant that the Veteran was noted to be only “borderline hypertensive” once in service; he was not noted to have hypertension in his separation examination; he denied having hypertension in March 2001, nearly four years after separation from service; and he was diagnosed with mild hypertension in April 2005, nearly eight years after separation from service. Furthermore, the Board notes that none of the in-service elevated diastolic readings were confirmed by readings taken two or more times on at least three different days as required by Diagnostic Code 7101. As such, the Veteran’s STRs do not reasonably identify hypertension as a disability. See Sellers v. Wilkie, 30 Vet. App. 157, 163 (2018). See also Colvin v. Derwinski, 1 Vet. App. 171 (1991) (the Board is not qualified to make its own medical determinations and must rely on independent and qualified medical expertise). Furthermore, the Board notes that in this case, the RO found the Veteran’s application to be unclear and sought clarification. The Veteran did not respond and accordingly the claim was deemed abandoned. See 38 C.F.R. § 3.158 (a). Once a claim has been abandoned under 38 C.F.R. § 3.158, the Secretary need not advise a claimant of his appellate rights, and no further action is required by the RO until a new claim is received. Id. More recently the Court has held that even if an appellant is ignorant of the abandonment provisions of 38 C.F.R. § 3.158 (a), VA regulations are “binding on all who seek to come within their sphere,” regardless of whether an appellant has actual knowledge of what is in the regulations. See Jernigan v. Shinseki, 25 Vet. App. 220 (2012). Consequently, the Board finds that the Veteran’s July 1997 application for compensation, denied in an October 1997 letter, does not constitute an unadjudicated claim for service connection for hypertension. Accordingly, an effective date in July 1997 for the award of service connection for hypertension is not warranted and the earliest effective date for the award of service connection is October 12, 2007. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q) and (r). The Board has reviewed the record to determine whether an informal claim of service connection for hypertension was filed prior October 12, 2007, that can be construed as an informal or formal claim for compensation benefits for hypertension, other than the July 1997 claim, but finds that there is no such document in the claims file. See 38 C.F.R. §§ 3.151, 3.155; Rudd v. Nicholson, 20 Vet. App. 296 (2006) (holding that a freestanding claim for effective date earlier than the date on which the claim was received, impermissibly attempts to vitiate the rule of finality). As such, under the applicable regulations, October 12, 2007, is the earliest date for the award of service connection for hypertension absent an appeal of whether CUE was committed in a prior rating decision. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Because the preponderance of the evidence is against the claim for an earlier effective date, the benefit of the doubt doctrine is not for application and the appeal is denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). REASONS FOR REMAND 1. Entitlement to an increased rating for hypertension prior to December 19, 2011, is remanded. In a June 2016 rating decision, service connection for hypertension was granted and a noncompensable (zero percent) rating was assigned effective October 12, 2007. In September 2016, the Veteran submitted a timely notice of disagreement with the rating assigned. In July 2018, during the pendency of appeal, the RO increased the initial rating to 10 percent for the period prior ot December 19, 2011. However, as noted in the November 2019 JMPR, a Statement of the Case (SOC) has not yet been issued. As such, the Board is required to remand the issue for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). The matter is REMANDED for the following action: Issue an SOC to the Veteran and his representative addressing the issue of entitlement to service connection for hypertension. The Veteran should be advised of the time limit in which to file a Substantive Appeal. Then, if an appeal is timely perfected, the issue should be returned to the Board for further appellate consideration, if otherwise in order. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Nelson 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.