Citation Nr: 21070177 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 14-35 565A DATE: November 23, 2021 ORDER Entitlement to an effective date of August 14, 1968, for the grant of service connection for hypertension, is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. VA received the Veteran's original claim for service connection for hypertension in May 1969. 2. In an unappealed July 1969 rating action, the RO, in part, denied service connection for hypertension. 3. VA received the Veteran's petition to reopen his previously denied claim for service connection for hypertension on August 29, 2000. 4. The RO's November 2001 award of service connection for hypertension was, in part, based on relevant official service treatment records that existed and had not been associated with the claims file when VA first decided the claim. CONCLUSION OF LAW The criteria for an effective date from August 14, 1968 for the award of service connection for hypertension have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1965 to August 1968, with confirmed service in the Republic of Vietnam. The Veteran passed away in December 2016. The Appellant is his surviving spouse and was granted substitution for the Veteran's pending claims by the Agency of Original Jurisdiction (AOJ). This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2001 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2016, the Veteran testified before a Veterans Law Judge (VLJ) who is no longer employed at the Board. A copy of the transcript has been associated with the claims file. The Appellant was then provided an opportunity to testify at a virtual hearing scheduled in October 2021. In October 2021 correspondence, the Appellant stated that she did not request a hearing and requested that a VLJ decide the matter based on the current information in the claims file. Effective Dates Unless otherwise specifically provided in Chapter 51 of Title 38 of the United States Code, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). Title 38 of the Code of Federal Regulations clarifies that an award of direct service connection will be effective on the day following separation from active military service or the date on which 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 appellant's claim or the date on which entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). Under 38 C.F.R. § 3.156(c), except as otherwise provided, if, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records, that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim notwithstanding paragraph (a) of the same section. This regulation does not apply to records that VA could not have obtained when it decided the claim because they did not exist or because the claimant failed to provide sufficient information for VA to identify and obtain the records. Id. at (c)(2). An award made based all or in part on records identified in § 3.156(c)(1) is effective on the date entitlement arose or the date which 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 denied claim. 38 C.F.R. § 3.156(c)(3). Such regulation essentially establishes that, where an initial claim is denied due to the lack of evidence of an in-service event, such as worsening hearing during service, but is later granted based all or in part on subsequently acquired service records establishing the in-service event, the claimant is entitled to a retroactive evaluation of the disability to assess the proper effective date, which would be the date of the original claim or the date entitlement otherwise arose, whichever is later. Id.; Vigil v. Peake, 22 Vet. App. 63, 66-67 (2008). In this sense, the prior denial is reconsidered, and the original claim serves as the date of the claim and the earliest date for which benefits may be granted. Entitlement to an effective date prior to August 29, 2000 for the award of service connection for hypertension The primary contention is that an effective date prior to August 29, 2000 for the award of service connection for hypertension is warranted. In this regard, during an October 2016 hearing, the Veteran testified that he never received the July 1969 rating decision. Additionally, the Veteran testified that new service treatment records that were relevant to the claim for service connection for hypertension were associated with the claims file since the initial 1969 rating decision. Accordingly, the Veteran argued, pursuant to 38 C.F.R. § 3.156(c), the July 1969 rating decision is not final. As the claim is being granted upon the basis of 3.156(c), the Board will not further consider the Veteran's prior contention as to the lack of notice. On May 13, 1969, within one year of separation from service on August 13, 1968, VA received the Veteran's claim for service connection for hypertension. The Veteran's hypertension claim was initially denied by an RO in July 1969. Although a list of evidence upon which the RO based its denial decision was not included in the rating decision, the RO noted that it had considered a November 1967 record, which showed that the Veteran was referred for hospital observation since his blood pressure diastolic readings ranged from 92 to 110. The RO further stated that a hospital record, dated December 1967, showed that the Veteran's blood pressures through hospitalization had shown diastolic readings below 90 and conclusion was observation for hypertension not found. The RO additionally noted that the Veteran's April 1968 separation examination noted a blood pressure reading of 130/90 and failed to arrive at a diagnosis of hypertension. The RO ultimately denied the claim, noting that a diagnosis of hypertension had not been established. Following the issuance of the July 1969 rating decision, additional service treatment records and personnel records were associated with the claims file in March 1973, April 1973, and January 1974. Review of these additional service treatment/personnel records reflect a notation that in December 1967, the Veteran was referred to the hospital "because of hypertension" and, at such time, the Veteran's physical examination showed a blood pressure reading of 144/96. The records also reflect that in April 1968, the Veteran claimed that he had high blood pressure. In a service treatment record dated March 1968, a blood pressure reading of 140/100 was noted. Also, a medical board proceeding showed several elevated blood pressure readings. Further, an undated service treatment record showed a notation that the Veteran "has high blood pressure which was discovered a month ago during separation physical." As VA received or associated with the claims file these relevant official service department records, that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c). Again, the Veteran sought to reopen his claim for service connection for hypertension in August 2000. In a November 2001 rating decision, the RO granted the claim. Evidence considered in the RO's subsequent grant of service connection for hypertension was based, in relevant part, on service medical records; post-service treatment records; and an October 2001 VA examination. Specifically, in the November 2001 rating decision, the RO noted that the Veteran's service medical records, dated October 1965 to December 1973, show systolic blood pressure readings of 140 to 150 and diastolic blood pressure readings of 94 to 100. The RO further noted that the medical board examination showed that the Veteran had blood pressure readings of 150/100 and 160/110. Ultimately, after a review of the medical evidence of record and an examination of the Veteran, service connection for hypertension was established as directly related to military service. Notably, in the 2001 examination, the examiner stated that with hypertensive readings shown in service, there was a diagnosis of hypertension that is service related. Having reviewed all of the evidence of record, the Board finds that, had the RO obtained the outstanding service treatment and personnel records prior to the original denial of service connection for hypertension, subsequent additional development would have been completed to lead to the grant of service connection for hypertension. Thus, the most probative evidence of record shows that the Veteran had hypertension at the time of the filing of his May 1969 claim for service connection, which was received within one year of separation from service. In performing this reconsideration pursuant to 38 C.F.R. § 3.156(c), the Board finds that the evidence supports that the Veteran's hypertension first manifested during service. As such, the Board finds that an earlier effective date of August 14, 1968, the day after separation from service, for the grant of service connection for hypertension is warranted. 38 C.F.R. §§ 3.156, 3.400. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson 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.