Citation Nr: 1322163 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 09-49 147 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from October 1985 to October 2005, when he retired. This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 RO decision that denied service connection for hypertension. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Service connection may be granted if it is shown the Veteran has disability resulting from an injury sustained or a disease contracted in the line of duty during her active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence confirming he has the claimed disability or has at some point since the filing of the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases like cardiovascular-renal disease, including hypertension, are considered chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of separation from service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). But if chronicity (i.e., permanency) of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b). See also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). To establish a showing of chronic disease in service, or within a presumptive period per § 3.307, a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic," is required. 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. Regarding these requirements as they specifically relate to the claim at issue, the evidence of record shows that the Veteran has a current diagnosis of systemic hypertension, first shown in August 2007. Consequently, the determinative issue is whether or not the current hypertension is attributable to his military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between the disability and an injury or a disease incurred in service."). As part of the duty to assist a Veteran in developing the facts and evidence concerning a claim, VA must provide the Veteran a medical examination for a medical nexus opinion when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or a service-connected disability; but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). When determining whether a VA examination and medical nexus opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence indicates an association between the disability and service or a service-connected disability. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). The Veteran has not been provided with a VA examination and medical opinion regarding the etiology of his current hypertension, and the Board finds that a VA examination is required, for the reasons and bases discussed below. A review of the Veteran's STRs shows that the Veteran's blood pressure was checked several times in June 2003, and his systolic pressures ranged from 110 to 128, and his diastolic pressures ranged from 69 to 82. In July 2003, his blood pressure was 141/95, and in September 2004, it was 141/88. The Veteran was screened for hypertension in June 2005, and his blood pressure readings varied widely - with systolic pressures ranging from 104 to 142 and diastolic pressures ranging from 74 to 91. His diastolic readings were consistently below 90 on all readings except one. On general medical examination performed for retirement purposes in August 2005, the Veteran's blood pressure was 130/84, 130/82, and 133/82. Hypertension was not diagnosed. Post-service medical records from William Beaumont Army Medical Center (WBAMC) dated in August 2007 reflect that the Veteran had a history of intermittent hypertension, and had never been treated for this condition. On examination, his blood pressure was 159/103. The examiner diagnosed systemic hypertension, and subsequent medical records reflect treatment for this condition. In light of the medical evidence showing that the Veteran has current systemic hypertension, and the evidence of intermittently elevated blood pressure during service, despite normal findings on his retirement examination, the Board finds that although hypertension was not shown to be chronic in service, there is an indication that hypertension may be associated with the Veteran's service. As there is insufficient competent medical evidence on file for VA to make a decision on the claim, the Board finds that this case must be remanded to obtain a VA medical opinion as to the etiology of the current hypertension. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon, supra; Waters, supra. Pertinent medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. With any necessary releases, obtain copies of all additional records of any relevant VA, private, or military treatment for hypertension since the Veteran's separation from service that are not already on file. 2. The RO/AMC should forward the claims file to an appropriate VA examiner to obtain a medical nexus opinion as to the etiology of current systemic hypertension. The claims file must be provided to and reviewed by the examiner. Based on a review of the record, the examiner should provide an opinion as to the etiology of the current hypertension - including especially the likelihood (very likely, as likely as not, or unlikely) that this current disability had its onset in service, or within one year of the Veteran's discharge from service (i.e., by October 31, 2006), or is otherwise related or attributable to his service. The examiner must discuss the medical rationale of the opinion, whether favorable or unfavorable, if necessary citing to specific evidence in the file. 3. Then readjudicate this claim in light of all additional evidence. If this claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to respond before returning the file to the Board for further appellate consideration of this claim. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).