Case A26036489

Summary

The veteran, who served from July 1967 to July 1970 and August 1974 to August 1976, including service in Vietnam, appeals the denial of an earlier effective date for hypertension and a higher rating for hypertension. The veteran also appeals the denial of individual unemployability prior to January 11, 2024. The Board first addressed the effective date for hypertension, finding that the evidence submitted in February 2014 was cumulative and redundant of earlier evidence, and thus did not warrant an earlier effective date than the January 24, 2017, claim receipt date. The Board denied this claim. Regarding the hypertension rating, the Veteran sought an extraschedular rating due to dizziness and weakness, which the Board found met the first two prongs of the Thun test. The Board remanded this issue for referral to the Director of Compensation Service for extraschedular consideration. The Board also remanded the individual unemployability claim, finding it inextricably intertwined with the extraschedular rating issue for hypertension.

Rationale

Submitted treatment records were cumulative and redundant; Did not warrant earlier effective date than claim receipt date

Full Decision Text

Citation Nr: A26036489
Decision Date: 04/20/26	Archive Date: 04/20/26

DOCKET NO. 260212-631475
DATE: April 20, 2026

ORDER

Entitlement to an effective date earlier than January 24, 2017, for hypertension is denied.

REMANDED

Entitlement to a rating higher than 10 percent for hypertension is remanded.

Entitlement to individual unemployability prior to January 11, 2024 is remanded.

FINDING OF FACT

The Veteran's VA Form 21-526EZ Fully Developed Claim was received by VA on January 24, 2017, and represents the earliest date for which service connection for hypertension may be awarded.

CONCLUSION OF LAW

The criteria for entitlement to an effective date earlier than January 24, 2017, for hypertension have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service from July 1967 to July 1970, and August 1974 to August 1976, to include service in the Republic of Vietnam.

In January 2024, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the rating and effective date assigned for service connection for hypertension, by the January 2023 rating decision which implemented the Board's December 2022 grant of the claim of entitlement to service connection for hypertension. 

In May and July2024, the agency of original jurisdiction (AOJ) issued supplemental claim decisions, which denied the claims of entitlement to an earlier effective date for the evaluation of hypertension (May 7, 2024), a rating higher than 10 percent for hypertension (May 28, 2024 and July 2024), and entitlement to individual unemployability (July 2024), based on the evidence of record at the time of those decisions.  

In May 2025, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the May and July 2024 supplemental claim rating decisions. 

In July and August 2025, the AOJ issued the HLR decisions on appeal, which considered the evidence of record at the time of the prior May and July 2024 decisions. 

In the February 2026 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the May and July 2024 decisions, which were subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

However, because the Board is remanding the claims of a rating higher than 10 percent for hypertension and entitlement to individual unemployability prior to January 11, 2024, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

The Board notes the Veteran waived the right to switch docket review lanes pursuant to Williams v. McDonough, 37 Vet. App. 305 (2024).  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).

Entitlement to an effective date earlier than January 24, 2017, for hypertension.

The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received, or
 v. McDonough, 37 Vet. App. 305 (2024).  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).

Entitlement to an effective date earlier than January 24, 2017, for hypertension.

The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received, or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400.

In the legacy review system, prior to February 19, 2019, VA could reopen a claim that had been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a).

Regarding applications for reopening, 38 C.F.R. § 3.156 (a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a).

Under the provisions of 38 C.F.R. § 3.156 (b), new and material evidence received during the appeal period after a decision will serve to preclude that decision from becoming final unless the decision is reconsidered. Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (holding that, in determining whether a decision became final, VA is required to determine whether any evidence received within one year of the decision is new and material and prevented the decision from becoming final).

The effective date based on the submission of new and material evidence received after a final disallowance, is the date of the receipt of the new claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. §§ 3.400 (q)(2), (r).

Under the law, the effective date for a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(1)(ii).

Under 38 C.F.R. § 3.2400(a), the modernized review system, also known as the Appeals Modernization Act (AMA), is applicable to all claims or requests for reopening finally decided claims for which VA issues notice of a decision on or after the effective date of the AMA. The AMA became effective on February 19, 2019. 38 C.F.R. § 19.2(a).

Under the AMA, an effective date can be preserved if the claim is continuously pursued by filing an appropriate administrative review option to an AMA decision, generally within one year from when the notice of a decision was issued. 38 C.F.R. § 3.2500 (c). If an AMA claim is continuously pursued, it will be considered filed as of the date of the first claim in the continuously pursued chain, not the date the most recent request for review was received. 38 C.F.R. § 3.2500 (h). Following notice of a decision on an initial claim or a supplemental claim, continuous pursuit can be established by filing either a higher-level review or VA Form 10182. 38 C.F.R. § 2.500(c)(1). Following notice of a decision on a Higher-Level Review by the AOJ, continuous pursuit can be established by filing either a supplemental claim or a VA Form 10182. 38 C.F.R. § 2.5000(c)(2).

The Veteran filed a claim to reopen entitlement to hypertension in January 2017, which was previously denied in an unappealed May 2013 rating decision, after the Veteran failed to report to VA examinations. See January 2017 VA Form 21-526EZ, Fully Developed Claim; May 2013 Rating Decision.

In the case at hand, the Veteran, through representative,
 or VA Form 10182. 38 C.F.R. § 2.500(c)(1). Following notice of a decision on a Higher-Level Review by the AOJ, continuous pursuit can be established by filing either a supplemental claim or a VA Form 10182. 38 C.F.R. § 2.5000(c)(2).

The Veteran filed a claim to reopen entitlement to hypertension in January 2017, which was previously denied in an unappealed May 2013 rating decision, after the Veteran failed to report to VA examinations. See January 2017 VA Form 21-526EZ, Fully Developed Claim; May 2013 Rating Decision.

In the case at hand, the Veteran, through representative, contends that an earlier effective date should be assigned for service connection for hypertension since new and material treatment records were added to the file in February 2014, which indicated that the Veteran's diabetes is a cardiac risk factor, and caused the previously denied claim to remain pending. However, the records referenced by counsel were not new and material, since a previously considered February 2009 treatment record also indicated that diabetes was a cardiac risk factor. Thus, the February 2014 VA treatment records were cumulative and redundant of the evidence of record at the time of the May 2013 rating decision.

As noted above, 38 C.F.R. § 3.400 provides that the earliest effective date of the grant of service connection is the date of the receipt of claim. Therefore, as the AOJ has already assigned an effective date of January 24, 2017, the date of receipt of the Veteran's claim, this is the earliest effective date available. Thus, an earlier effective date for the grant of service connection for this claim is not warranted.

Accordingly, the persuasive evidence of record is against an earlier effective date for this claim, is not in approximate balance, and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Therefore, the appeal is denied.

REASONS FOR REMAND

A rating higher than 10 percent for hypertension.

The Veteran is seeking a higher rating for service connected hypertension.

The Board notes that the issue of consideration of an extraschedular rating was raised by the Veteran, through counsel in a February 2026 communication, due to weakness and dizziness.

Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016).  If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111.

Here, in regard to the first step, comparison of the Veteran's symptoms and associated functional impairment shows that the rating criteria are inadequate to describe his disability picture. The Veteran's hypertension is rated under Diagnostic Code 7101 which simply contemplates systolic and diastolic pressure readings, whereas, the Veteran stated his symptoms also included dizziness and weakness. Therefore, the first step of Thun is met.

In regard to the second step, the Veteran also stated that due to the symptoms noted above, his ability to work was compromised. See February 2026 Argument. The Board finds that these symptoms and the effect on work indicate a level of severity that could cause marked interference in all endeavors, including employment. Therefore, the second step of Thun is met.

As such, the Board concludes the third step, referral for extraschedular consideration, is appropriate. Specifically, a remand is required to allow for referral to the Director, Compensation Service for extraschedular consideration of the Veteran's service-connected hypertension. Such a remand is necessary in order to fulfill a regulatory or statutory duty. 38 C.F.R. § 20.802(a).

Entitlement to individual unemployability prior to January 11, 2024.

Subsequent to the July 2024 rating decision on appeal, the AOJ issued a July 2025 rating decision which granted entitlement to individual unemployability, effective
 marked interference in all endeavors, including employment. Therefore, the second step of Thun is met.

As such, the Board concludes the third step, referral for extraschedular consideration, is appropriate. Specifically, a remand is required to allow for referral to the Director, Compensation Service for extraschedular consideration of the Veteran's service-connected hypertension. Such a remand is necessary in order to fulfill a regulatory or statutory duty. 38 C.F.R. § 20.802(a).

Entitlement to individual unemployability prior to January 11, 2024.

Subsequent to the July 2024 rating decision on appeal, the AOJ issued a July 2025 rating decision which granted entitlement to individual unemployability, effective January 11, 2024. Therefore, the issue on appeal is entitlement to individual unemployability prior to January 11, 2024.

Because a decision on the Veteran's claimed entitlement to a rating higher than 10 percent for hypertension on an extraschedular basis could impact the determination on his claim of entitlement to individual unemployability prior to January 11, 2024, the issues are inextricably intertwined, and remand of this claim is required. Harris v. Derwinski, 1 Vet. App. 180 (1991).

The matters are REMANDED for the following action:

Refer the Veteran's claim for a rating higher than 10 percent for hypertension to the Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1).

 

 

I. Cannaday

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T.B.

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.