Citation Nr: 20046727 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 16-12 318 DATE: July 13, 2020 ORDER Entitlement to an effective date of November 1, 2002 for award of service connection for hypertension, based on clear and unmistakable error (CUE) in an April 2003 rating decision, is granted. FINDING OF FACT 1. The Veteran initiated a claim for service connection for hypertension prior to his separation from service on October 31, 2002. 2. In an April 2003 rating decision, the RO denied service connection for hypertension and noted that there was no definitive evidence of hypertension in service treatment records or evidence of current hypertension during VA examination. 3. Service treatment records document diagnosis and treatment for hypertension. 4. The record establishes, without debate, that the correct facts, as then known, were not before the RO at the time of the April 2003 rating decision which denied service connection for hypertension, and that error manifestly changed the outcome of the decision at the time it was made. CONCLUSION OF LAW The criteria for entitlement to an effective date of November 1, 2002 for award of service connection for hypertension have been met. 38 U.S.C. §§ 5110, 7105 (c); 38 C.F.R. §§ 3.104, 3.105, 3.400 (b)(2)(i), 20.302(a), 20.1103 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1982 to October 2002. 1. Entitlement to an effective date prior to January 5, 2011 for award of service connection for hypertension, to include consideration of clear and unmistakable error (CUE) in an April 2003 rating decision The Veteran contends that he is entitled to an effective date prior to January 5, 2011, for the grant of service connection for hypertension. The record shows that prior to his separation from service in October 2002, the Veteran initiated a claim for service connection for hypertension in May 2002. In a May 2002 pre-discharge VA examination, a VA examiner noted that the Veteran had a history of hypertension during service at which time he had been placed on medication for two months. He denied use of any current mediation to treat high blood pressure. Clinical evaluation revealed blood pressure readings of 115/68, 125/70, and 127/70 and the Veteran was assessed as normotensive. In an April 2003 rating decision, the RO specifically denied service connection for hypertension. The RO found that the VA examination failed to show evidence of hypertension and there was no definitive evidence of hypertension in service treatment records. The Veteran did not file a notice of disagreement with the April 2003 rating decision, and no new and material evidence was received within a year of that decision. The April 2003 rating decision was rendered final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Under the provisions of 38 C.F.R. § 3.105 (a), previous determinations that are final and binding will be accepted as correct in the absence of CUE. However, if the evidence establishes CUE, the prior decision will be reversed and amended. A finding of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. In determining whether a prior determination involves CUE, the Court has established a three-prong test. The three prongs are: (1) either the correct facts, as they were known at the time, 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). The Veteran contends that there was CUE in the unappealed April 2003 rating decision that denied entitlement to service connection for hypertension. Specifically, he asserts that he had a diagnosis for hypertension during service, but the RO did not examine all the evidence. See March 2016 VA Form-9, substantive appeal. As to the claims for an earlier effective date for award of service connection for hypertension based on CUE in the April 2003 rating decision, the Board finds that the three prong test for CUE has been met. First, in the April 2003 rating decision, the RO did not note the correct facts. In contrast to the report in the rating decision, the service treatment records do in fact show diagnosis and treatment for hypertension. In this regard, service treatment records show that the Veteran initially was diagnosed and treated for hypertension in 1996. See December 1995 and May 1996 service treatment record, and July 1996 report of medical history. Also, an August 8, 2002 separation examination included a finding by the examiner that the Veteran had hypertensive blood pressure reading and he should undergo a blood pressure check with his primary care physician. An August 15, 2002 service treatment record showed a daily blood pressure check supported a diagnosis of hypertension, and the Veteran was prescribed medication and advised to diet and exercise. Second, as the service treatment records document actual diagnosis and treatment of hypertension in August 2002 (after the May 2002 VA examination), the error is undebatable. The RO’s error in not finding that the Veteran had hypertension in service manifestly changed the outcome of the rating decision, as the RO had effectively found that the Veteran did not have such disorders in service. Third, based on the record and law that existed in April 2003, the Veteran was diagnosed with hypertension during service, which would warrant an award of service connection. See 38 C.F.R. § 3.303 (a) (2003). Accordingly, the Board finds that the correct facts, as they were known at the time, were not before the adjudicator at the time of the April 2003 decision, that such error is undebatable, and that it manifestly changed the outcome of the Veteran’s claim for service connection for hypertension. Consequently, the Board finds CUE in the April 2003 rating decision for claim for service connection for hypertension. Here, the Veteran filed his claim as part of the pre-discharged program. As such, the Board finds that an effective date of November 1, 2002 - the day after his separation from service - for the grant of service connection for hypertension is established. 38 C.F.R. § 3.400 (b)(2)(i). J. TUNIS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Murray, 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.