Citation Nr: 0004692 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 98-17 855 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a heart disorder. 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Associate Counsel INTRODUCTION The appellant served on active duty from June 1965 to September 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. That rating decision denied service connection for a heart disorder. It also found that the appellant had not submitted new and material evidence to reopen his claim for service connection for hypertension. In October 1999, a hearing was held before Bettina S. Callaway, who is the Board Member making this decision and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). For the reasons addressed below, the Board concludes that a Remand is necessary to allow for an informed decision on the appellant's claim for entitlement to service connection for a heart disorder. Accordingly, this issue will be discussed in the REMAND portion of this decision. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the appellant's appeal. 2. The appellant's service medical records reveal numerous elevated blood pressure readings. 3. Post service medical records note treatment for and a diagnosis of essential hypertension shortly after the appellant's discharge from active duty service. Subsequent post service medical records reveal ongoing treatment for this condition. 4. The appellant currently has hypertension. CONCLUSION OF LAW The appellant's hypertension was incurred in military service. 38 U.S.C.A. §§ 101(16), 1110, 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Preliminary Considerations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). Service connection may be established for a current disability in several ways, including on a "direct" basis, on the basis of "aggravation," and on a "secondary" basis. 38 U.S.C.A. §§ 101(16), 1110, 1153 (West 1991); 38 C.F.R. §§ 3.303, 3.304(a), (b), (c), 3.306(a), (b), 3.310(a) (1999). Direct service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(a), (b), (d) (1999). Establishing direct service connection for a disability which has not been clearly shown in service requires the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(d) (1999); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection is also warranted for disability proximately due to or the result of a service-connected disorder and where aggravation of a nonservice-connected disorder is proximately due to or the result of a service- connected disability. of disability which would exist without such aggravation. 38 C.F.R. § 3.310(a)(1999); Allen v. Brown, 7 Vet. App. 439, 448, 449 (1995). Hypertension may also be presumed to have been incurred during active military service if manifested to a degree of 10 percent within the first year following active service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). The law provides that "a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991). A well- grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [section 5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Generally, for a service-connection claim to be well grounded a claimant must submit evidence of each of the following: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the asserted in-service injury or disease and the current disability. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Elkins v. West, 12 Vet. App. 209, 213 (1999) (en banc) (citing Caluza, supra, and Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) (expressly adopting definition of well-grounded claim set forth in Caluza, supra), cert. denied sub nom. Epps v. West, 524 U.S. 940, 118 S. Ct. 2348, 141 L. Ed. 2d 718 (1998) (mem.)). Alternatively, either or both of the second and third Caluza elements can be satisfied under 38 C.F.R. § 3.303(b) by the submission of (a) evidence that a condition was "noted" during service or during an applicable presumption period; (b) evidence showing post service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). The credibility of the evidence presented in support of a claim is generally presumed when determining whether it is well grounded. See Elkins, 12 Vet. App. at 219 (citing Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995)). II. Analysis A. Issue on Appeal - Service Connection for Hypertension. In October 1985, the RO issued a rating decision that denied, in pertinent part, the appellant's claim for service connection for hypertension. A disallowed claim does not become a final determination where VA has failed to procedurally comply with statutorily mandated requirements. Tablazon v. Brown, 8 Vet. App. 359, 361 (1995). Those procedural requirements include, in accordance with 38 U.S.C. § 5104(a) and 38 C.F.R. § 3.104(a), written notification of the decision and an explanation of the procedure for obtaining review of the decision. Best v. Brown, 10 Vet. App. 322, 325 (1997) (where a regional office committed a procedural error by failing to adequately notify the appellant that it was denying service connection for a disorder, its decision is not final). A review of the RO's notification letter, dated November 4, 1985, reveals that it fails to provide the appellant with adequate notice of the denial of his claim for service connection for hypertension. In this regard, the letter does not even refer to the appellant's claim for service connection for hypertension. Accordingly, the October 1985 rating decision is not final on the issue of entitlement to service connection for hypertension. See 38 U.S.C.A. § 5104(b). In December 1991, the appellant filed a second claim seeking service connection for hypertension. Although a final decision had not been rendered herein, the RO, in January 1992, adjudicated the claim on a new and material basis and found that the appellant had not submitted new and material evidence to reopen his claim. Pursuant to the appellant's current request to reopen his claim, the RO issued a rating decision, dated May 1998, which also found that the appellant had not submitted new and material evidence to reopen his claim for service connection for hypertension. Under the circumstances presented herein, the Board concludes that the proper issue on appeal in this matter is entitlement to service connection for hypertension. Accordingly, the Board will consider the appellant's claim for service connection for hypertension on its merits. Review of the appellant's claim requires the Board to provide a written statement of the reasons or bases for its findings and conclusions on material issues of fact and law. 38 U.S.C.A. § 7104(d)(1) (West 1991). The statement must be adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate review by the United States Court of Veterans Appeals (the Court). See Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Masors v. Derwinski, 2 Vet. App. 181, 188 (1992). Furthermore, as the Court has pointed out, the Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record or adequate quotation from recognized medical treatises. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this case, the appellant alleges that he incurred hypertension during his active duty service. The determinative issues presented by this claim are: (1) whether the appellant incurred, or aggravated, hypertension during service or within the first post service year; (2) whether he has a current disability; and, if so, (3) whether the current disability is etiologically related to his active military service. The appellant's claim for service connection for hypertension is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. See Savage v. Gober, 10 Vet. App. 489 (1997). All relevant facts have been properly developed and no further assistance to the appellant is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). After a thorough review of the appellant's claims file, the Board finds that the evidence supports his claim for entitlement to service connection for hypertension. The appellant's service medical records reveal multiple elevated blood pressure readings throughout his active duty service. An inservice treatment report, dated April 1985, noted a blood pressure reading of 132/100. A May 1985 treatment report notes a blood pressure reading of 122/98. A June 1985 treatment report notes a blood pressure reading of 130/110. Through his testimony before the Board, the veteran indicated that he has received treatment for hypertension on a continuous basis ever since his discharge from active duty service in September 1985. Post service medical treatment records reveal that the appellant was diagnosed with hypertension as early as October 1986. Specifically, an October 1986 treatment report notes that the appellant had a history of hypertension. It also notes complaints of headaches and dizziness. A diagnosis of essential hypertension was given. Subsequent post service medical treatment reports reveal ongoing treatment for this condition. A November 1997 treatment report shows a diagnosis of severe hypertension. Where there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving that issue shall be given to the appellant. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1997). Accordingly, the Board concludes that service connection is warranted for hypertension. ORDER Entitlement to service connection for hypertension is granted. REMAND As previously set forth, service connection has been granted for hypertension. This grant raises the issue of service connection a heart disorder on a secondary basis. A claim for secondary service connection must be granted when a disability "is proximately due to or the result of a service- connected disease or injury." 38 C.F.R. § 3.310(a) (1998). Accordingly, in order to ensure the veteran's right of due process, the case is Remanded for the following actions: 1. The appellant should be asked to provide a list containing the names and addresses of all health care professionals and/or facilities (private and governmental) where he has been treated for a heart disorder since his discharge from the service. After securing the proper authorizations, the RO should attempt to obtain all of the records of treatment from all the sources listed by the appellant, which are not already on file. 2. The RO should inform the appellant that he has the opportunity to submit additional evidence and arguments in support of his claim for service connection for a heart disorder on a direct basis and as secondary to the service connected hypertension. 3. The RO should then schedule the veteran for a VA cardiology examination, to be performed preferably by a board certified cardiologist, who has not previously examined the veteran, to determine the current manifestations of his heart disorder. Any and all evaluations, tests, and studies deemed necessary should be accomplished and the findings reported in detail. The veteran's claims file should be reviewed by the examiner to determine the relationship, if any, between the veteran's current heart disorder and his service-connected hypertension. After a thorough review of the veteran's claims file and his post service medical records, the examining physician should express an opinion as to the following: Whether it is at least as likely as not that the veteran's current heart disorder is causally related to his active duty military service or to his service-connected hypertension. The claims folder must be made available and reviewed by the examiner prior to making the above determination. The examiner should provide complete rationale for all conclusions reached. 4. The RO should then readjudicate the issue of service connection for a heart disorder on a direct basis and as secondary to the service connected hypertension, to include consideration of Allen v. Brown, 7 Vet. App. 439 (1995). Once the foregoing has been accomplished and, if the appellant remains dissatisfied with the outcome of the adjudication of the claim, both the appellant and his representative should be furnished a supplemental statement of the case covering all the pertinent evidence, law and regulatory criteria. They should be afforded a reasonable period of time in which to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals