BVA9504744 DOCKET NO. 91-46 833 ) DATE ) ) On appeal from the decisions of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether a rating decision of October 28, 1978, which denied entitlement to service connection for hypertension, involved clear and unmistakable error. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hypertension. 3. Entitlement to service connection for a chronic back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James A. Frost, Associate Counsel INTRODUCTION The veteran served on active duty from March 1948 to February 1952 and from April 1952 to April 1968. This appeal arises from rating decisions in May 1989 and June 1993 by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. A rating decision in October 1978 denied entitlement to service connection for hypertension; the veteran was duly notified of the decision; a timely appeal was not filed and the decision became final. In 1989 and thereafter the veteran submitted additional evidence in an attempt to reopen his claim; the RO found that the additional evidence was not new and material, and the current appeal on that issue ensued. In December 1993 the Board of Veterans' Appeals (the Board) remanded this case to the RO for evidentiary development. The case was returned to the Board in December 1994. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that hypertension and a chronic back disorder are related to his period of his active service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claims. FINDINGS OF FACT 1. The agency of original jurisdiction denied entitlement to service connection for hypertension by a rating decision of October 28, 1978. 2. The rating decision of October 28, 1978, which denied entitlement to service connection for hypertension, was adequately supported by the evidence then of record. 3. Additional evidence submitted since October 1978 shows only that hypertension was diagnosed several years after service. 4. Back strain in service was acute and transitory and resolved without producing chronic disability. CONCLUSIONS OF LAW 1. The rating decision of October 28, 1978, which denied entitlement to service connection for hypertension, is final. 38 U.S.C.A. §§ 1110, 1131, 7105 (West 1991); 38 C.F.R. § 3.104(a) (1994). 2. The rating decision of October 28, 1978, which denied entitlement to service connection for hypertension, was not clearly and unmistakably erroneous. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.105(a) (1994). 3. Evidence received since the agency of original jurisdiction denied entitlement to service connection for hypertension in October 1978 is not new and material and the veteran's claim for that benefit has not been reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994). 4. A chronic back disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303(b) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Hypertension The evidence which was of record when the agency of original jurisdiction denied entitlement to service connection for hypertension by a rating decision of October 28, 1978, will be summarized below. Service medical records disclosed that in a report of a medical history for reenlistment in April 1952, the veteran denied ever having had high blood pressure. At a medical examination for reenlistment in April 1952 his blood pressure (BP) was 140/90. In a report of medical history in March 1956 he denied ever having had high blood pressure. At a medical examination in March 1956 his BP was 138/88. In a report of medical history for retirement in November 1967 the veteran denied ever having had high blood pressure. At a medical examination for retirement in November 1967 his BP was 140/90. An electrocardiogram was within normal limits. In May 1978 William B. Crum, M.D., a private cardiologist, reported that another physician had diagnosed "unbalanced high blood pressure" in December 1974; the veteran had been on antihypertensive medication for two years as of December 1974. Dr. Crum stated also that the veteran developed diabetes mellitus in 1975. In a letter to the RO, received in June 1978, the veteran stated that military doctors started treating him for hypertension in 1972 and advised him not to become a full-time student until his hypertension was under control. The additional evidence received since October 1978 with regard to hypertension will be summarized below. While this case was in remand status, the RO attempted to obtain additional service medical records. The National Personnel Records Center (NPRC) reported that all service medical records on file had been sent to VA in 1972. The NPRC provided only duplicate copies of previously supplied service medical records. The veteran submitted records from the Naval Hospital in Long Beach, California, which showed that at a screening clinic at that facility in October 1972 he complained of chest pains. His BP was 182/102. At a general medical clinic in October 1972 his BP was 165/95-100. Later that month it was noted that his BP was being checked at a VA hospital where he worked; it was ranging from 138-146/90-100. At the naval hospital in October 1972 his BP was 158/100 in the right arm and 160/110 in the left arm. Antihypertensive medication was prescribed. In December 1972, after he had been placed on antihypertensive medication, the veteran's BP was 170/110. In September 1992 the VA Hospital in Long Beach, California, reported that the veteran had not been hospitalized at that facility, where he had been an employee. His employee health records were obtained for the period September 1968 to February 1989. Those records show that, at a preemployment examination in September 1968, no physical limitations which would disqualify the veteran from working as a nursing assistant were found. He was able to stand and walk eight hours per day and to perform heavy lifting. Subsequent employment health records were silent as to any VA treatment for the veteran's later-diagnosed hypertension. In September 1981 his BP was 138/86. In August 1986 his BP was 170/94. In his notice of disagreement, received at the RO in May 1990, the veteran stated that a person could have hypertension for years before a diagnosis is made. He stated that in service in 1965, 1966, or 1967 he had had chest pains. At his retirement examination in 1967, the physician told him that something was "irregular" on his electrocardiogram. (The Board notes that the report of the electrocardiogram in November 1967 showed a normal study). He also stated that after separation from service in April 1968 he did not see a physician until 1972, when hypertension was diagnosed. Applicable regulations provide that previous determinations which are final and binding, including decisions concerning service connection, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a) (1994). The United States Court of Veterans Appeals (the Court) has propounded a three-pronged test to determine whether clear and unmistakable error (CUE) is present in a prior determination: (1) Either the correct facts, as they were known at the time, were not before the adjudicator (that is, more than a simple disagreement as to how the facts were evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be "undebatable" and of the sort "which, had it 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 prior adjudication in question. Damrel v. Brown, 6 Vet.App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet.App. 310, 313-14 (1992) (en banc)). The Court has also stated that it must be remembered that CUE is a very specific and rare kind of "error." "It is the kind of error, of fact or of law, that when called to the attention to later reviewers compels the conclusion to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable." Fugo v. Brown, 6 Vet.App. 40, 43-44 (1993) citing Russell v. Principi, 3 Vet.App. 310, 313 (1992) (en banc) (emphasis in the original). In the veteran's case, the correct facts, set forth in the veteran's available service medical records, were before the RO at the time of the October 1978 adjudication. The RO's 1978 finding that hypertension was not demonstrated during the veteran's period of active service or shown to be compensably disabling within one year of his separation from service was adequately supported by the evidence then of record. A finding of CUE is clearly not warranted. 38 C.F.R. § 3.105(a). With regard to the additional evidence on the hypertension issue submitted since 1978, the Board finds that, while some of the additional evidence is "new" in the sense that it is not cumulative and redundant of prior evidence, none of the additional evidence is "material." Assuming, without deciding that the additional evidence is relevant or probative, there is no reasonable possibility that the additional evidence, when considered in the context of all the evidence, both new and old, would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171 (1991). The additional evidence contains no objective proof whatsoever that the veteran's hypertension had its onset in service or became compensably disabling within one year of his separation from service. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). II. The Back Initially, the Board notes that the veteran's claim of entitlement to service connection for a chronic back disorder is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, the claim is plausible. The Board is also satisfied that all relevant facts with regard to this issue have been properly developed. No further assistance to the veteran is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107(a). Service medical records disclose that in May 1958 the veteran was put on a profile of no prolonged standing or marching or heavy lifting due to acute back strain. In a report of medical history for retirement, the veteran stated that he had had recurrent back pain. At the medical examination for retirement in November 1967, it was noted that he "has transient aching for 10 minutes in lumbar area only after lifting heavy weights for many years. Has not required treatment." The veteran's VA employee health record shows that in May 1970 he sustained a strain over his left lower back after lifting a patient out of a wheelchair. In June 1979 he injured his lower back lifting a heavy bag of linen. In August 1979 he complained of pain from the middle of his upper back to his thighs after lifting a patient. In August 1981 he had back pain after lifting a patient. In his notice of disagreement of May 1990 the veteran stated that he had had recurrent injuries to his back in service and, also, as a VA employee after service. He was taking Tylenol for back pain. Service connection may be granted for disability resulting from injury or disease incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Where a condition is not noted to have been chronic in service, continuity of symptomatology after service is required to support a claim of entitlement to service connection. 38 C.F.R. § 3.303(b). In the veteran's case, the evidence clearly shows that back strains in service were acute and transitory rather than chronic. Indeed, at his retirement examination in November 1967, back strain was described as "transient" and occurring only after heavy lifting. The post service evidence on this issue shows several work-related back injuries, the first of which was in May 1970, two years after the veteran's separation from service. The record simply does not show the development of a chronic back disorder in service. In addition, continuity of back symptomatology from April 1968, when the veteran was separated from service, to May 1970, when he sustained the first work- related injury, has not been demonstrated. Service connection for that disability is therefore not established. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(b). While the Board has considered the doctrine of affording the veteran the benefit of any existing doubt with regard to the issues on appeal, the record does demonstrate an approximate balance of positive and negative evidence as to warrant resolution of this matter on that basis. 38 U.S.C.A. § 5107(b). ORDER A rating decision of October 28, 1978, not having involved clear and unmistakable error, and new and material evidence not having been submitted to reopen a claim of entitlement to service connection for hypertension, the benefits sought on appeal with regard to hypertension are denied. Service connection for a chronic back disorder is denied. ALBERT D. TUTERA Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.