Citation Nr: A20008787 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 190913-30502 DATE: May 18, 2020 ORDER Readjudication of the claim for service connection for hypertension is warranted. Entitlement to an effective date of December 10, 2007, and no earlier, for the grant of service connection for hypertension is granted. FINDINGS OF FACT 1. The Veteran’s original claim for service connection for hypertension was received on December 10, 2007 and was denied by a decision issued in March 2009 which was not appealed. In the decision it was noted that the Veteran’s service treatment records were not available. 2. Evidence received subsequent to the expiration of the appeal period with regard to the denial of service connection for hypertension includes the Veteran’s official service treatment records, which document in-service treatment and a diagnosis of hypertension. CONCLUSIONS OF LAW 1. The criteria for readjudicating the claim for service connection for hypertension were met. 38 U.S.C. § 7104; 38 C.F.R. § 3.156(d). 2. The criteria for an effective date of December 10, 2007, and no earlier, for the grant of service connection for hypertension have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 1970 to December 1992. The Board notes that the rating decision on appeal was issued in August 2019. In September 2019, the Veteran elected the modernized review system. 38 C.F.R. § 19.2(d). 1. Whether new and relevant evidence was presented to warrant readjudicating the April 2016 claim for service connection for hypertension. The Veteran contends that he submitted evidence with his legacy system petition to reopen a claim for service connection for hypertension that is new and relevant and warrants readjudication of the issue. VA will readjudicate a claim if new and relevant evidenced is presented or secured. 38 C.F.R. § 3.156(d). “Relevant evidence” is evidence that tends to prove or disprove a matter in issue. 38 C.F.R. § 3.2501(a)(1). At the time of the March 2009 and April 2016 rating decisions, there was no indication that the Veteran’s complete service treatment records were associated with his claims file. The March 2009 decision specifically noted that his service treatment records were unavailable. The April 2016 rating indicates that “available” service records were considered but were negative for hypertension. In retrospect, this confirms that complete records were not in his VA file. The Veteran filed a supplemental claim for service connection for hypertension in June 2019. One year prior in 2018 his complete service treatment records were finally associated with his claims file. These records reflect that the Veteran received treatment for and was diagnosed with hypertension while on active duty. These service treatment records predate the March 2009 rating decision, and therefore, existed when VA initially decided the claim. There is no indication that the Veteran failed to provide insufficient information to allow VA to obtain these records. Accordingly, the Board finds that reconsideration is warranted. See 38 C.F.R. § 3.156(c). 2. Entitlement to a date earlier than June 11, 2019 for the grant of service connection for hypertension. The Veteran contends that the effective date of the grant of service connection for his hypertension should be December 10, 2007, the date he originally applied for service connection. The Veteran asserts that his original claim was denied based on the absence of his service treatment record which document that he was diagnosed with hypertension while he was on active duty. Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. But unless otherwise provided, the effective date of compensation will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110 (a). When there is a prior final decision in the claims file and a later reopened claim results in a grant of the benefit, the general rule for effective dates for reopened claims applies. In such cases the effective date cannot be earlier than the subsequent claim to reopen. 38 C.F.R. § 3.400 (r), 3.400(q)(2); see Leonard v. Principi, 17 Vet. App. 447, 452 (2004); Sears v. Principi, 16 Vet. App. 244, 246-50 (2002), aff’d, 349 F.3d 1326 (Fed. Cir. 2003); Flash v. Brown, 8 Vet. App. 332, 340 (1995). However, there is an exception to the general rule that the effective date of an award based on a request to reopen is the date VA receives the request to reopen. In this regard, newly discovered service treatment records can serve as a basis for providing an early effective date under 38 U.S.C. § 3.156(c). 38 C.F.R. § 3.156 (c)(1) provides that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). Under 38 C.F.R. § 3.156 (c)(3), an award made based “all or in part” on additional service department records is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. “In this sense, the original claim is not just re-opened, it is reconsidered and serves as the date of the claim and the earliest date for which benefits maybe granted.” Vigil v. Peake, 22 Vet. App. 63 (2008). Thereby, under 38 C.F.R. § 3.156(c), the March 2009 rating decision is not final due to relevant service treatment records being associated with the claims file afterwards. Therefore, an earlier effective date is warranted pursuant to the provisions of 38 C.F.R. § 3.156(c), based on the receipt of additional service treatment records following the March 2009 rating decision. These particular service treatment records had not been secured and were not previously of record. The service treatment records document that the Veteran was treated for and diagnosed with hypertension during his military service. Upon review of the evidence of record, an earlier effective date of December 10, 2007, is warranted for the award of service connection for hypertension. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Mountford, 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.