Citation Nr: 1308128 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 08-02 024 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hypertension. ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1995 to June 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The case was brought before the Board in July 2010 at which time the Veteran's claim was remanded for additional development. The claim was again before the Board in May 2012 when it was again remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his appeal, to include providing him notice on substantiating his claim, obtaining outstanding VA treatment records, obtaining records from the Social Security Administration (SSA), and contacting the August 2010 VA examiner for an addendum opinion. The Veteran was provided notice on substantiating his claim in May 2012. His most recent VA treatment records were obtained and associated with the claims file. The SSA provided his records which were also associated with the claims file. The issues of entitlement to service connection for major depression, posttraumatic stress disorder, and erectile dysfunction have been raised by the record via a VA Form 21-22a submitted in October 2010 by the Veteran's former private attorney, but have not recently been adjudicated by the AOJ since the claims were denied in July 2008. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. Unfortunately, the claim on appeal still needs to be further developed before being decided. So the Board once again is remanding the service connection claim for hypertension to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran seeks service connection for hypertension, which he relates to his elevated blood pressure readings in service. He essentially argues that he would have been diagnosed with hypertension in service if properly treated. The service treatment records confirm elevated blood pressure readings throughout his military service but the Veteran was never diagnosed with hypertension and none of the blood pressure readings meet the requirement of 38 C.F.R. § 4.104. For VA purposes, the term hypertension means that the diastolic blood pressure is predominantly 90mm, or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm, or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1), under Diseases of the Arteries and Veins. These must be confirmed by readings taken two or more times on at least three different days. Id. The Veteran was afforded a medical examination at entrance to service in August 1995 and at various times throughout service. At his entrance examination his blood pressure was recorded as 118/78. In his Report of Medical History the Veteran reported that he did not suffer from high or low blood pressure. In a February 1997 treatment record the Veteran was seen for a lip abrasion and his blood pressure was 164/98. A May 1998 treatment record shows a blood pressure reading of 150/100. In June 1998 the Veteran was treated for an upper respiratory infection and his blood pressure was 140/90. He was issued a 5 day blood pressure check at home station. There is no follow up for this condition. In September 1998 the Veteran reported with lower back pain and his blood pressure was recorded as 137/90. In January 2000 he was seen for right knee problems and his blood pressure was 144/96. In March 2000 he was seen again with complaints of right knee pain and his blood pressure was 139/93. In April 2004 the Veteran was treated for gastroesophageal reflux disease (GERD) and his blood pressure was 141/89 and 132/88. The two medical opinions of record in August 2010 and August 2012 have found that the Veteran's hypertension is not related to his military service because it was not diagnosed in service. While it is clear that the Veteran was not diagnosed with hypertension in service, service connection for a disease that was first diagnosed after service can still be granted service connection if the evidence shows the disease was incurred in service. 38 C.F.R. § 3.303(d). Therefore, the medical question that the Board needs resolved is whether the Veteran's current diagnosis of hypertension was incurred in service (notwithstanding the fact that there was no diagnosis in service). Factors to consider are the reports of elevated blood pressure readings throughout his service. For this reason an addendum opinion is necessary to resolve this claim. Service connection also may be granted for a chronic disease, including hypertension, when it is manifested to a compensable degree within one year of separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The U.S. Court of Appeals for the Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, --- F.3d ----, No. 2011-7184, 2013 WL 628429 *5 (Fed. Cir. February 21, 2013), affirming Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). [emphasis added]. For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing inservice incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). A veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Hypertension is a chronic disease listed under 38 C.F.R. § 3.309(a), and therefore service connection can be granted by establishing a continuity of symptomatology since service under 38 C.F.R. § 3.303(b). In addition, hypertension may be presumed to have been incurred in service if it became manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Veteran was separated from military service in June 2004; so the presumptive period for his service connection claim for hypertension would be through June 2005. On VA examination in August 2010, the Veteran reported that his blood pressure had been elevated since service. He also asserted that he tried hypertension medication from April to August 2004 when he was diagnosed with hypertension and that he was started on medications in the VA system in 2004. The Veteran's former representative also submitted a statement in April 2010 that the Veteran had been treated and diagnosed with hypertension within the presumptive period. The claims file reflects VA treatment records from the VAMC in Biloxi starting in February 2006, at which time the Veteran indicated that he wanted to establish care for his hypertension. This is the first diagnosis of record. There are also private emergency care records for heartburn in September 2004, with no mention of a hypertension diagnosis. As the Veteran has stated that he first started hypertension medication at a VA medical facility in 2004, it is possible that there are outstanding treatment records that could demonstrate a diagnosis of hypertension within the presumptive period. At the least, these records would be relevant to his claim. For this reason, efforts must be made to obtain any outstanding VA treatment records dated from June 2004 to February 2006. It is not clear at which VA facility he is alleging he sought treatment in 2004. The Veteran reportedly was working at Fort Stewart (Georgia) after his separation from service. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify at which VA facility he sought treatment for hypertension in 2004. 2. Using the information provided by the Veteran make arrangements to obtain relevant VA treatment records dated from June 2004 to February 2006 concerning treatment for hypertension including any prescription medication. If the Veteran does not respond, search for relevant records from June 2004 to February 2006 at the VAMC in Biloxi, Mississippi. Also please take into consideration that the Veteran apparently was employed after service through 2005 at Fort Stewart in Georgia. If efforts to obtain the additional VA treatment records are unsuccessful, make a formal finding on the unavailability of these additional records and notify the Veteran of this and explain any further actions VA will take regarding his claims. 38 C.F.R. § 3.159(c)(2), (e)(1). 3. Following completion of the above, make arrangements to obtain an addendum opinion concerning the etiology of the Veteran's hypertension. Provide the VA examiner time to review and consider these additional records, in addition to the claims file and a copy of this Remand, in conjunction with the examination. The examiner also should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that his present hypertension had its clinical onset during active service or is related to any in-service disease, event, or injury (including the periods of elevated blood pressure readings in service). The two medical opinions of record in August 2010 and August 2012 have found that the Veteran's hypertension is not related to his military service because it was not diagnosed in service. While it is clear that the Veteran was not diagnosed with hypertension in service, service connection for a disease that was first diagnosed after service can still be granted service connection if the evidence shows the disease was incurred in service. 38 C.F.R. § 3.303(d). Therefore, the medical question that the Board needs resolved is whether the Veteran's current diagnosis of hypertension was incurred in service (notwithstanding the fact that there was no diagnosis in service). Factors to consider are the reports of elevated blood pressure readings throughout his service. Specifically, military treatment records show that in February 1997 the Veteran was seen for a lip abrasion and his blood pressure was 164/98. A May 1998 treatment record shows a blood pressure reading of 150/100. In June 1998 the Veteran was treated for an upper respiratory infection and his blood pressure was 140/90. He was issued a 5 day blood pressure check at home station. There is no follow up for this condition. In September 1998 the Veteran reported with lower back pain and his blood pressure was recorded as 137/90. In January 2000 he was seen for right knee problems and his blood pressure was 144/96. In March 2000 he was seen again with complaints of right knee pain and his blood pressure was 139/93. In April 2004 the Veteran was treated for gastroesophageal reflux disease (GERD) and his blood pressure was 141/89 and 132/88. The VA examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Ensure the examiners' opinions are responsive to the questions asked. If not, take corrective action. 38 C.F.R. § 4.2. 5. Then readjudicate the claim in light of the additional evidence. If the claim is not granted to the Veteran's satisfaction, send him another SSOC and provide time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claim. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs