Citation Nr: A21017262 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 200515-83832 DATE: October 26, 2021 ORDER New and relevant evidence has been received sufficient to readjudicate a claim of entitlement to service connection for hypertension. Service connection for hypertension is granted. An effective date of September 6, 2019 for service connection for tinnitus is granted, subject to the rules and regulations governing the award of monetary benefits. The combined ratings for the Veteran's service-connected disabilities have been properly calculated by the RO at 40 percent effective September 6, 2019; and 60 percent effective December 28, 2020. FINDINGS OF FACT 1. New evidence was received after the March 2015 rating decision that is relevant to the issue of entitlement to service connection for hypertension. 2. Resolving reasonable doubt in the Veteran's favor, his hypertension manifested to a compensable degree within one year of his separation from service and is not attributable to intercurrent causes. 3. The Veteran's claim for service connection for tinnitus, reopened after a final disallowance, was received on September 6, 2019; the Veteran was granted service connection effective October 30, 2019. 4. Effective September 6, 2019, the Veteran's service-connected disabilities were rated as follows: post-traumatic stress disorder (PTSD) at 30 percent, left ankle fracture at 10 percent, tinnitus at 10 percent, and status post left femur fracture at 0 percent. 5. Effective December 28, 2020, the Veteran's service-connected disabilities were rated as follows: PTSD at 50 percent, left ankle fracture at 10 percent, tinnitus at 10 percent, and status post left femur fracture at 0 percent. CONCLUSIONS OF LAW 1. New and relevant evidence was received after the March 2015 rating decision that is relevant to the issue of entitlement to service connection for hypertension. 2. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for an effective date of September 6, 2019, for the award of service connection for tinnitus, have been met. 38 U.S.C. §§ 5103, 5103A, 5110; 38 C.F.R. § 3.400. 4. Effective September 6, 2019, the Veteran's service-connected disabilities resulted in a combined rating of 40 percent. 38 C.F.R. § 4.25. 5. Effective December 28, 2020, the Veteran's service-connected disabilities resulted in a combined rating of 60 percent. 38 C.F.R. § 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1997 to March 2010. On appeal is an April 2020 rating decision issued by a Department of Veteran Affairs (VA) Regional Office (RO). In May 2020, the Veteran filed Form 10182 Notice of Disagreement (NOD) and opted to continue his appeal via Direct Review by a Veterans Law Judge (VLJ). As such, the Veteran cannot submit any additional evidence in support of this appeal. The Veteran indicated he is challenging (1) the effective date of the award of service connection for tinnitus and (2) the combined rating assigned for his service-connected disabilities. Later in May 2020, the Veteran filed another Form 10182 Notice of Disagreement (NOD) and opted to continue this appeal via Direct Review by a VLJ. As such, the Veteran cannot submit any additional evidence in support of this appeal. The Veteran indicated he was challenging the continued denial of service connection for hypertension. These matters are now before the Board of Veterans Appeals (Board) for appellate review. 1. Whether new and relevant evidence has been received to readjudicate the claim of service connection for hypertension. The Veteran seeks to readjudicate his claim for entitlement to service connection for hypertension which was previously denied in a March 2015 rating decision. At that time, the AOJ acknowledged that the Veteran's service treatment records were not available for review and that there was no objective evidence this condition had manifested to a compensable degree within one year of service to warrant a presumptive grant of service connection. Although the Veteran's service treatment records were subsequently added to the Veteran's claim file, in the recent April 2020 rating decision, the AOJ confirmed and continued the prior denial. VA will readjudicate a claim if new and relevant evidence 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). The first question is whether the Veteran submitted new evidence after the prior final denial of his claim for entitlement to service connection for hypertension, and second, whether that evidence is relevant. New evidence was associated with the claims file following the previous final denial in March 2015. This evidence consists of the Veteran's service treatment records; VA treatment records from the Hampton VAMC; private treatment records; and additional lay statements from the Veteran. This new evidence shows the Veteran has a current diagnoses and ongoing treatment for hypertension that was not of record at the time of the March 2015 rating decision and therefore, is relevant to the claim for entitlement to service connection for hypertension. Thus, the Board finds that new and relevant evidence, sufficient to readjudicate the claim, has been received. Readjudication of the claim is warranted. 38 U.S.C. § 5108. 2. Entitlement to service connection for hypertension. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Certain chronic diseases, such as hypertension, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a one-year presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Here, the Veteran contends that he should be granted service connection for hypertension under the presumptive for chronic diseases, arguing he was prescribed medication for hypertension within 1 year of separation from service. The Veteran's service treatment records are associated with his claims file. In summary, these records do not reflect a diagnosis of hypertension; medication for hypertension; on 01/15/10 Blood Pressure reading was 138/74. The Veteran's DD-214 reflects he was discharged from service on March 30, 2010. VA treatment records from the Hampton VAMC are associated with the Veteran's claim file. A July 2010 record reflects the Veteran had been in combat in the Persian Gulf War. He had been on 5 deployments and the record reflects the visit was required for all returning combat Veterans from Iraq and Afghanistan for purposes of determining the need for additional care. The Veteran was referred for a TBI evaluation, PTSD counseling, and a Persian Gulf Evaluation. High blood pressure or hypertension was not specifically mentioned or diagnosed. A March 2011 primary care note reflects the Veteran's Blood Pressure (BP) was recorded that day as 143/90. A later March 2011 record reflects the Veteran's BP was recorded that day as 143/90. An April 2011 record reflects the Veteran's active outpatient medications include hydrochlorothiazide, 25 mg, daily (medication for hypertension) although the record does not specifically provide a diagnosis of hypertension. A May 2011 record reflects the Veteran's "Active Outpatient Medications" includes hydrochlorothiazide, 25mg, daily. Private treatment records from Correct Care Solutions are associated with the Veteran's claim file. A May 2014 record provides a diagnosis of hypertension - the earliest diagnosis of hypertension found in the record. While the evidence is not unequivocal, the Board finds that upon review of the records noted above, and resolving all reasonable doubt in the Veteran's favor, service connection is warranted as this combat Veteran with 5 deployments, was prescribed medication for hypertension 1 year and 1 month after his separation from service. The Board finds that on these facts, it stands to reason that the Veteran had to have a diagnosis of hypertension within 1 year of separation and is thus eligible for the presumptive for chronic diseases. As such, the Board finds that the preponderance of the evidence, when taken as a whole, indicates that service connection for hypertension is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to an earlier effective date for the award of service connection for tinnitus. Generally, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase 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. In deciding this case based on its application of the law to the pertinent facts, the Board notes that the "date of receipt" of claim means the date on which the claim was received by VA, except as to specific provisions for claims received in the State Department, the Social Security Administration, or the Department of Defense. 38 C.F.R. § 3.1(r). Here, the Veteran filed an initial claim for service connection for tinnitus that was received by VA on December 31, 2014. That claim was denied in a March 16, 2015 rating decision issued by a VA Regional Office. The Veteran filed a Notice of Disagreement (NOD) on April 2, 2015; and a Statement of the Case (SOC) denying his claim was issued on April 9, 2018. No appeal was filed, and as such, the March 16, 2015 rating decision became final. The Veteran filed a new claim for tinnitus that was received by the VA on September 6, 2019. He later filed a supplemental claim that was received by the VA on October 30, 2019. His claim would later be granted by the RO (in an April 2020 rating decision) with an effective date of October 30, 2019. Based on these facts, the Board has determined that the "date of receipt of claim" (after the final disallowance) is September 6, 2019. As such, an effective date of September 6, 2019 is warranted in this case. This is the earliest effective date possible based upon the facts in this case and the law and regulations. An effective date of September 6, 2019 is granted for the award of service connection for tinnitus. 4. Entitlement to a higher combined rating for service-connected disabilities. When there are two of more service-connected compensable disabilities, a combined evaluation will be made following the table and rules prescribed in the Schedule for Rating Disabilities. 38 C.F.R. § 3.323. Combined ratings are determined by using the Combined Ratings Table in Table I of 38 C.F.R. § 4.25. To use Table I, the disabilities are first arranged in the exact order of their severity, beginning with the greatest disability and then combined using Table I; the figures appearing in the space where the column and the row intersect represent the combined value of the two. This combined value is then converted to the nearest number divisible by 10; combined values ending in 5 are adjusted upward. If there are more than two disabilities, the combined value of the first two disabilities is charted against the third disability using Table I. The same procedure is used if there are four or more disabilities. 38 C.F.R. § 4.25 The Veteran contends that the combined rating for his service-connected disabilities have not been calculated properly. As noted above, effective September 6, 2019, the Veteran's service-connected disabilities were rated as follows: PTSD at 30 percent, left ankle fracture at 10 percent, tinnitus at 10 percent, and status post left femur fracture at 0 percent. Applying the above ratings to Table I, the first two disabilities (30 percent for PTSD combined with 10 percent for left ankle fracture) yield a combined rating of 37. A 37 percent rating and the 10 percent rating for tinnitus combine to a combined rating of 43. The 43 percent rating is adjusted downward to 40 percent pursuant to 38 C.F.R. § 4.25(a) (ratings are rounded to the nearest number divisible by 10, with amounts ending in 5 or above being rounded up). Thus, the 40 percent combined rating assigned by the RO is correct under the current law. Effective December 28, 2020, the Veteran's service-connected disabilities were rated as follows: PTSD at 50 percent, left ankle fracture at 10 percent, tinnitus at 10 percent, and status post left femur fracture at 0 percent. Applying the above ratings to Table I, the first two disabilities (50 percent for PTSD combined with 10 percent for left ankle fracture) yield a combined rating of 55. A 55 percent rating and the 10 percent rating for tinnitus combine to a combined rating of 60. As the 60 percent rating does not require any adjustment since it is divisible by 10, the 60 percent combined rating assigned by the RO is correct under the current law. M. Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jiggetts, Tenisha 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.