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CCK Successfully Appealed BVA’s Denial of Veteran’s Request to Reopen Claim for Hypertension

CCK Successfully Appealed BVA’s Denial of Veteran’s Request to Reopen Claim for Hypertension

Factual and Procedural History

The Veteran served in the United States Army from November 1969 to March 1971.  At his separation from service, he reported that he did not have high blood pressure, and high blood pressure was not found on a physical examination.  The Veteran initially applied for service-connected compensation for hypertension in April 1977.  He was denied by the Regional Office a few months later, upon finding no evidence of a diagnosis of hypertension.  The Veteran did not appeal this decision and it became final.

In January 2009, the Veteran sought to reopen his previously denied claim for service connection for hypertension.  He stated that his hypertension began as his service ended and progressed within one year of his separation from service.  In February 2009, the Veteran submitted a statement from a private physician indicating that he had “difficult-to-control hypertension” and had been taking medication for this condition for years.  Two months later, the Regional Office issued a decision reopening his claim, but denying it based on its finding that his condition did not develop within one year of service.  The Regional Office noted that the first evidence of treatment for hypertension was in 1974.  The Veteran disagreed with the decision and submitted a 1977 medical record that included a doctor’s treatment note that he had “known high blood pressure since 1971 at age 21” and that the condition was discovered “when he applied for a job shortly after being discharged from the Army”.

The Board of Veterans’ Appeals remanded the Veteran’s claim in March 2016 in order to afford him a hearing, which took place in December of that year.  At the hearing, the Veteran reiterated that he was diagnosed with hypertension in 1971.  In August 2017, the Board issued a decision that determined that new and material evidence had not been presented to reopen the Veteran’s previously denied claim for benefits for hypertension.  In its decision, the Board explained that there was still no evidence showing that the Veteran’s “current hypertension manifested in service or within one year thereafter or is otherwise causally or etiologically related to his military service”.  In order to make this determination, the Board compared the Veteran’s lay statements to other evidence in the record.  Ultimately, the Board discounted his statements based on a 1974 treatment document indicating that he was turned away from the Army Reserves for high blood pressure in 1974.

CCK Argues the Board Misapplied the Law Regarding New and Material Evidence

CCK successfully appealed to the Court of Appeals for Veterans Claims (CAVC) the Board decision that denied the Veteran’s request to reopen his hypertension claim with new and material evidence.  CCK argued that the Veteran’s lay statements should have been presumed credible and that the Board erred by requiring him to prove the merits of his claim.  Furthermore, CCK argued that the Board provided inadequate reasons or bases for its decision.

Court Remands the Veteran’s Claim Back to the Board

CCK argued, and the Court agreed, that the Board erred by finding that the Veteran failed to submit new and material evidence to reopen his claim.  Specifically, the Court found that the Board weighed the evidence before reopening the Veteran’s claim by requiring that the new evidence prove his claim.  In doing so, the Board used the incorrect legal standard for reopening a claim.  Further, although the Board discussed the evidence that weighed against the Veteran’s claim, it did not discuss the March 1977 VA treatment note that indicated he had high blood pressure since 1971.  The Court concluded that on remand, the Board should apply the correct standard for determining whether reopening the Veteran’s claim is warranted and more fully consider the newly submitted evidence of record.

Category: Court Wins

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