Citation Nr: 20038036 Decision Date: 06/03/20 Archive Date: 06/03/20 DOCKET NO. 15-27 968 DATE: June 3, 2020 ORDER New and material evidence having been received, the claim for service connection for hypertension is reopened. To that extent only, the appeal is granted. Service connection for hypertension, to include as secondary to a service-connected disability, is denied. FINDINGS OF FACT 1. A November 1975 rating decision denied a claim for service connection for hypertension. The Veteran was notified of the decision and his appellate rights, but he did not initiate an appeal. 2. The evidence received since the November 1975 denial relates to unestablished facts necessary to substantiate the claim for service connection for hypertension and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s hypertension is not secondary to a service-connected disability, was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The November 1975 rating decision that denied a claim for service connection for hypertension is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim for service connection for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for hypertension, to include as secondary to a service-connected disability, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1950 to November 1952. The Veteran was scheduled for a November 2019 Board hearing in Las Vegas, Nevada. The record shows that he failed to report for the hearing. Thus, the request for a Board hearing is considered withdrawn. 38 C.F.R. § 20.704(d). Application to Reopen—Hypertension Generally, a final decision issued by the agency of original jurisdiction may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c), (d). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. “New evidence” is evidence that has not previously been reviewed by VA adjudicators. “Material evidence” is existing evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). In determining whether evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Board must review all the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). Regrettably, the Veteran’s claims file was lost and had to be rebuilt. The record indicates that a claim for service connection for hypertension may have been previously denied. Regardless, a claim for service connection for high blood pressure, or hypertension, was denied in a November 1975 rating decision. The claim was denied because there was no evidence of the disorder in service or within one year of discharge, or a link between the disorder and service. The Veteran was notified of the decision and his appellate rights, but he did not initiate an appeal. There is no indication that new and material evidence pertinent to the issue was received within one year following the decision. Thus, the decision became final. The pertinent evidence received since the November 1975 denial includes a December 2012 letter in which a private physician indicated that the Veteran’s service-connected disabilities were an aggravating factor in the development and sustaining of the abnormal blood pressure. Presuming the credibility of the evidence, the record now indicates that the Veteran’s hypertension was caused or aggravated by his service-connected disabilities. The evidence is new, not cumulative, and relates to unestablished facts necessary to substantiate the claim. Thus, as new and material evidence has been received, the claim for service connection for hypertension is reopened. Service Connection—Hypertension Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the nonservice-connected disease or injury, will be service connected. 38 C.F.R. § 3.310(b). Thus, service connection is permitted not only for disability caused by a service-connected disability, but also for the degree of disability resulting from aggravation by a service-connected disability. Where a veteran served for 90 days or more of active service, service incurrence shall be presumed for certain chronic diseases, including hypertension, if the disease manifested to a compensable degree within one year from the date of separation from active service. While the disease need not be diagnosed within the presumption period, it must be shown by acceptable lay or medical evidence that there were characteristic manifestations of the disease to the required degree during that time. The 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. Here, the Veteran asserts that his hypertension is secondary to a service-connected disability. Among other things, service connection is in effect for the residuals of a fracture of the right leg and a lumbar spine disability with associated radiculopathy, bladder dysfunction, and erectile dysfunction. The available service treatment records do not show any complaints, findings, or diagnoses of hypertension or high blood pressure. The separation examination report shows a normal blood pressure reading. Post service, private medical records show a normal blood pressure reading in July 1968 and November 1974. Of note, the Veteran complained of chest pain for the past three months in November 1974, but testing revealed no diagnosis of a heart disorder or hypertension. At a July 1975 VA examination, he indicated that he has been seen for chest pain since 1970 and has been diagnosed with hypertension. VA medical records show an elevated blood pressure reading of 170/94 in May 1998 and a history of hypertension in June 2010. In a December 2012 letter, a private physician stated that the Veteran’s service-connected disabilities were aggravating factors in the development and sustaining of the abnormal blood pressure. The physician stated that the Veteran’s service-connected disabilities were contributory and connected to his medical problems which include pulmonary embolism, stroke, and coronary artery disease. At an August 2014 VA examination, the Veteran reported that he was diagnosed with hypertension in 1990. However, the examiner noted that the records indicate that the Veteran was diagnosed with hypertension in approximately 1974. The examiner opined that the Veteran’s hypertension was not proximately due to, or the result of, a service-connected disability. The examiner explained that hypertension cannot be proven to have any relationship or causality in reference to a service-connected disability. The examiner stated that, from service time until diagnosis, there is no medical documentation of hypertension or a relationship between the hypertension and a service-connected disability. The examiner further opined that the Veteran’s hypertension was not aggravated by a service-connected disability, restating that, from service time until diagnosis, there is no medical documentation of hypertension or a relationship between the disorder and a service-connected disability. The examiner stated that a correlation simply cannot be made. Initially, the Veteran does not assert, and the record does not show, that his hypertension had its onset in active service or is otherwise related to such service. There is no indication of hypertension during service or within one year after his discharge from service. The first indication of hypertension is in a May 1998 VA medical record showing an elevated blood pressure reading of 170/94. At the July 1975 VA examination, however, the Veteran reported that he was diagnosed with hypertension in 1970. However, even an onset date of 1970 still dates the disorder to over 22 years after discharge from service. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Thus, the Board finds that the Veteran’s hypertension was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; and continuity of symptomatology is not established. Turning to the Veteran’s assertion that his hypertension is secondary to a service-connected disability, a VA examiner has opined that the Veteran’s hypertension was not caused or aggravated by a service-connected disability. As the examiner provided a sound rationale for the opinion, the Board finds the opinion to be of great probative value. Hayes v. Brown, 9 Vet. App. 67 (1996). The Board notes the December 2012 private physician’s opinion that the Veteran’s service-connected disabilities were aggravating factors in the development and sustaining of the abnormal blood pressure. However, the physician did not provide a rationale as to how any of the service-connected disabilities caused or aggravated the Veteran’s hypertension. As such, the Board finds the physician’s opinion to be of little probative value and outweighed by the VA examiner’s opinion. Id. Thus, the more probative medical evidence of record shows that the Veteran’s hypertension is not secondary to a service-connected disability. The Board notes that a lay person is competent to give evidence about observable symptoms such as elevated blood pressure readings. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, however, the record dates the onset of symptoms to over 20 years after separation from active service, and the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address the etiology of his disability. Accordingly, the Board concludes that service connection for hypertension, on a direct or secondary basis, is not warranted. As the preponderance of the evidence is against this claim, it must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. W. Kim, 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.