Citation Nr: 1753258 Decision Date: 11/20/17 Archive Date: 12/01/17 DOCKET NO. 09-21 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased rating for residuals of a left tibia injury, to include osteomyelitis, rated as 0 percent disabling prior to July 25, 2015. 2. Entitlement to service connection for hypertension, to include as secondary to a service-connected disability of the distal left tibia. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from September 1963 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This rating decision denied entitlement to a compensable evaluation for residuals of a left tibia injury, to include osteomyelitis, and denied entitlement to service connection for hypertension. A notice of disagreement was received in January 2007, a statement of the case was issued in April 2009, and a substantive appeal was received in June 2009. A November 2015 rating decision granted an increased rating for what has been recharacterized as "status post 2 old healed fractures status post surgery with screw fixation and osteomyelitis of the distal left tibia." This rating decision increased the rating for this disability from 0 percent to 20 percent, effective July 25, 2015. A May 2012 rating decision denied entitlement to service connection for a low back disability. A notice of disagreement was received in June 2012, a statement of the case was issued in February 2013, and a substantive appeal was received in February 2013. In October 2012, the Board remanded the issues that are currently on appeal, and they were returned for further appellate review following completion of the requested development. In a July 2016 decision, the Board, in pertinent part, denied a compensable rating for residuals of a left tibia injury prior to July 25, 2015, and denied a rating in excess of 20 percent on and after that date. The Board also remanded the issues of entitlement to service connection for hypertension and for a low back disability. (In a January 2017 Corrected Order, the Board deleted a portion of the July 2016 Order that erroneously listed a disposition for the hypertension claim.) In a July 2017 rating decision, the Veteran was granted service connection for degenerative joint disease of the lumbar spine. That grant constitutes a complete allowance of the benefit sought, and that issue is therefore no longer on appeal. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). By Order dated in June 2017, the Court granted a May 2017 Joint Motion for Partial Remand that vacated the Board's decision with respect to the assignment of the noncompensable rating prior to July 25, 2015, and remanded the matter for compliance with the instructions in the Joint Motion. Specifically, the Joint Motion determined that the Board had incorrectly stated the law. The Board has corrected this error in the decision below. In addition, the May 2017 Joint Motion expressly requested that the Court dismiss the appeal of the portion of the Board's decision that denied a rating in excess of 20 percent on and after July 25, 2015. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). FINDINGS OF FACT 1. Prior to July 25, 2015, the Veteran's residuals of a left tibia injury, to include osteomyelitis, manifested by inactive infection following repeated episodes, without evidence of active infection in the past five years. 2. The Veteran did not exhibit hypertension in service or within one year after discharge from service, and hypertension is not otherwise shown to be associated with his active service or a service-connected disability. CONCLUSIONS OF LAW 1. Prior to July 25, 2015, the criteria for the assignment of a rating of 10 percent, but no higher, for residuals of a left tibia injury, to include osteomyelitis, have been met. 38 U.S.C. §§ 1155, 5103, 5103a, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 4.71a, Diagnostic Code 5000 (2017). 2. The criteria for establishing service connection for hypertension, including on a secondary basis, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duty to notify was satisfied by letters that were sent to the Veteran in August 2006, October 2009, and October 2012. See 38 U.S.C. §§ 5102, 5103, 5103A (West 2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). All relevant, obtainable evidence has been associated with the claims file to fulfill VA's duty to assist. 38 U.S.C. § 5103A. I. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). When entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that staged ratings are appropriate for an increased rating claim that is not on appeal from the assignment of an initial rating when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. The Veteran has claimed entitlement to a compensable rating for residuals of a left tibia injury, to include osteomyelitis, prior to July 25, 2015, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5000 (2017). Under Diagnostic Code 5000, for osteomyelitis, acute, subacute, or chronic, a 10 percent evaluation is assigned for inactive osteomyelitis following repeated episodes without evidence of active infection in the past 5 years. A 20 percent evaluation is assigned for osteomyelitis with discharging sinus or other evidence of active infection within the past 5 years. A 30 percent evaluation is assigned for osteomyelitis with definite involucrum or sequestrum, with or without discharging sinus. A 60 percent evaluation is assigned for frequent episodes of osteomyelitis with constitutional symptoms. A 100 percent evaluation is assigned for osteomyelitis of the pelvis, vertebrae, or extending into major joints, or with multiple localizations or with long history of intractability and debility, anemia, amyloid liver changes or other continuous constitutional symptoms. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5000 provides that a rating of 10 percent, as an exception to the amputation rule, is to be assigned in any case of active osteomyelitis where the amputation rating for the affected part is 0 percent. This 10 percent rating and the other partial ratings of 30 percent or less are to be combined with rating for ankylosis, limited motion, nonunion or malunion, shortening etc., subject, of course, to the amputation rule. The 60 percent rating, as it is based on constitutional symptoms, is not subject to the amputation rule. A rating for osteomyelitis will not be applied following cure by removal or radical resection of the affected bone. Note (2) to Diagnostic Code 5000 provides that the 20 percent rating on the basis of activity within the past 5 years is not assignable following the initial infection of active osteomyelitis with no subsequent reactivation. The prerequisite for this historical rating is an established recurrent osteomyelitis. To qualify for the 10 percent rating, two or more episodes following the initial infection are required. This 20 percent rating or the 10 percent rating, when applicable, will be assigned once only to cover disability at all sites of previously active infection with a future ending date in the case of the 20 percent rating. Turning to the evidence of record, service treatment records reflect that the Veteran's lower extremities were clinically normal at the time of his enlistment examination in September 1963. Service treatment records also note that the Veteran has had chronic osteomyelitis of the left tibia junction of the mid and distal third since 1957. He experienced symptoms for approximately four years following the initial episode. An October 1963 service treatment record notes that the Veteran reported pain in the left leg area where a metal plate has been since 1957. A November 1963 record notes that the Veteran reported pain in his left mid tibia area and that he reported losing control of the left leg if bumped. Service treatment records from February and March 1964 reflect that the Veteran sought treatment for leg pain. An April 1964 record notes that the Veteran was seen for left lower leg pain that he had been having every time he walked more than two blocks. He was seen in the orthopedic clinic one month earlier and told that he would be operated on at termination. A June 1964 record notes that the Veteran sought treatment for an old fracture with good healing. No treatment was indicated. An August 1964 record notes that x-rays showed a healed tibia fracture with two screws deeply imbedded. On examination, there was no evidence of infection, while the x-ray report indicated "? Low grade infection - by xray only - clinically none." Service treatment records reflect that the Veteran was treated for osteomyelitis throughout service, including undergoing surgery in November 1964 and hospitalization from November 1964 to March 1965. A narrative summary from the Veteran's hospitalization notes that the Veteran did not mention any difficulty on his induction forms. He reported his leg became reddened and inflamed and a piece of bone came out when he bumped it in September 1963. He reported that he next had difficulty in April 1964 and that he has had pain since then without relief. However, a May 1965 record notes that the Veteran developed continued pain after he was struck on the shin in October 1963. The Veteran underwent VA examinations in September 2006, March 2009, April 2012, December 2012, and September 2015. The September 2006 VA examination report notes, in relevant part, that the Veteran described having sharp, localized pain two times per month, each time lasting for five hours. The pain is at level 5 on a scale of 1 to 10. It can be elicited by physical activity and relieved by rest and medication. It was noted that the bone condition is not currently infected, and that it was last infected in 1963. In terms of functional impairment, he has to limit walking. The March 2009 VA examination report notes that the Veteran indicated he has no problems with the left lower leg. It was noted that he takes no medications for this disability, has not reported any joint problems or flare-ups, uses no braces or canes, and has had no further injury or surgery. It does not affect his daily activities or his employment. On examination, there was no tenderness or swelling at any aspect of the lower or upper leg. The examiner noted that the Veteran's osteomyelitis had apparently completely healed. The examiner noted that the only abnormality is the shortening of the left leg by 1 centimeter, but there were no lower extremity complaints associated with this abnormality. A June 2009 VA medical record notes that the Veteran sought treatment for an old injury to the left low leg. He has occasional pain and swelling of the left leg after working on his feet for hours. It was also noted to be painful in the early morning, and the leg seemed to cramp up a lot. It was noted that the Veteran walks with use of a cane. On examination, his gait was slightly antalgic. His left lower leg was noted to have scars. There was no calf tenderness and good muscle tone. There were no tremors or abnormal movements. The April 2012 VA examination report notes that the Veteran reported there are no problems with his tibia. There were no symptoms, and he was taking no medication. He reported no flare-ups. It was opined that the Veteran's osteomyelitis did not impact his ability to work. The December 2012 VA examination report notes that the Veteran has been diagnosed with degenerative joint disease of the left knee and with old healed fractures at mid-shaft of the tibia. The examiner also noted that the area of the left tibia fracture is tender. There is no further drainage, redness, or swelling. The Veteran denied flare-ups that impact the function of the knee and/or lower leg. It was noted that there was a deformity in the bone shaft, but there was no false joint, malunion, or nonunion. There were no signs of active infection or draining sinus. The Veteran was noted to be limited to standing for 15 to 30 minutes and was able to walk one fourth of a mile. It was noted that the Veteran did not report having flare-ups that impact of the function of his lower leg. A July 2015 VA medical record notes that the Veteran has a remote history of left leg osteomyelitis and that he was presenting with several years of waxing and waning deep aching pain in the left leg. He reported that, on multiple occasions, the leg has swollen up and he gets drainage from the wound. He denied fever, cough, nausea, and vomiting. It notes that he has had chronic nerve pain from the injury and that he walks without assistance. He reported that he is not interested in having surgery for the infection. He had a similar visit two years ago and has not had any problems since then. On examination, it was noted that the Veteran had a well-healed incision with no erythema or effusion and no active drainage. On x-ray, the left tibia showed a retained broken screw, a well-healed fracture, and no evidence of osteomyelitis. The assessment was that the Veteran had likely left tibia neuropathic pain with possible low grade infection from retained hardware. His doctor told the Veteran that he likely has an infection, given that he has had an infection before and gets intermittent drainage from the wound. He and the Veteran discussed definitive treatment for osteomyelitis. The Veteran would need new labs and removal of the broken screw, incision and debridement, and possible antibiotic beads. The September 2015 VA examination report notes that the Veteran has had recurrences of his infection in 1965, 2014, and 2015 that have involved chronic sinus drainage of the left distal tibia. Based on the above, the Board will resolve the benefit of the doubt in favor of the Veteran and find that a rating of 10 percent, but no higher, is warranted prior to July 25, 2015. As indicated above, a 10 percent rating is warranted when there is inactive osteomyelitis, following repeated episodes, without evidence of active infection in past 5 years. In the case at hand, the Board notes that the evidence shows that the Veteran's osteomyelitis has been inactive and that there is no credible persuasive evidence of active infection in the past 5 years. The Board also finds that the record contains evidence of "repeated episodes" of active osteomyelitis, not counting the initial infection. As noted above, the service treatment records document that the Veteran's osteomyelitis began in 1957, approximately six years prior to service, and his medical history notes that he had symptoms for approximately four years thereafter. He was found to be clinically normal at the time of his September 1963 enlistment examination, and he was subsequently treated multiple times for osteomyelitis during service. There is some uncertainty with respect to whether his in-service treatment was for one, continuous infection or for multiple infections. Specifically, the August 1964 service treatment record notes no clinical evidence of infection, while there was uncertainty as to whether the x-ray showed evidence of low grade infection. The Board finds that there is reasonable doubt to resolve in favor of the Veteran and that the service treatment records reflect multiple episodes of infection. These episodes qualify as "repeated episodes" of osteomyelitis for purposes of establishing that the Veteran satisfies the 10 percent rating criteria. Even though the evidence of record does not demonstrate any episodes of osteomyelitis between service and 2015, the repeated episodes of osteomyelitis in service in the 1960s qualify the Veteran for the 10 percent rating during the period that is contemplated by the present appeal. The Board finds that a rating in excess of 10 percent is not warranted during this period, however, as the contemporaneous VA examination and medical records dated prior to July 25, 2015, show no active infection within the appeals period or within 5 years prior. Nor are the criteria for an even higher rating satisfied. The Board notes that the September 2015 VA examination report reflects that the Veteran reported having had infections in 2014 and 2015. However, the Veteran's VA medical records from that period contain no reports of or treatment for osteomyelitis during that period. The Veteran was not diagnosed with an active infection in 2014. Without competent medical evidence of active osteomyelitis prior to July 25, 2015, the Board finds that a rating in excess of 10 percent cannot be awarded. Accordingly, entitlement to a rating of 10 percent, but no higher, for residuals of a left tibia injury, to include osteomyelitis, prior to July 25, 2015, is warranted. II. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for chronic disabilities, such as hypertension, if such are shown to have been manifested to a compensable degree within one year after the veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In such instances, service connection may be established based on a continuity of symptomatology from the time of manifestation. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a)). A disability that is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2017). Secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310(b), and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability and not due to the natural progress of the nonservice-connected disease. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran has claimed entitlement to service connection for hypertension, to include as secondary to service-connected disability of the distal left tibia. "Hypertension" is defined as persistently high arterial blood pressure, and by some authorities the threshold for high blood pressure is a reading of 140/90. Dorland's Illustrated Medical Dictionary p. 889 (30th ed. 2003). 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). Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. With respect to service treatment records, the Veteran's September 1963 enlistment examination report notes that the Veteran's heart and vascular system were clinically normal on examination. At that time, his blood pressure was 120/70. He expressly denied any history of, or current, high blood pressure on his September 1963 pre-induction medical history report. On his June 1966 separation examination report, the Veteran's vascular system was clinically normal and his blood pressure was 120/76. He reported on his September 1966 statement of medical examination that his medical condition had not changed since his separation examination. Otherwise, his service treatment records reflect that he neither complained of, nor sought treatment for, symptoms that have been associated with hypertension. A September 1987 VA medical record notes a blood pressure reading of 140/96. A July 1990 VA medical record notes that the Veteran has been diagnosed with primary hypertension, left ventricular hypertrophy, and sinus bradycardia. A July 1994 VA examination report notes that the Veteran reported that he was first diagnosed with hypertension in 1993 and had been placed on medications. A December 2005 VA medical record included "primary hypertension" on a problem list. A March 2009 VA medical record notes that the Veteran has benign hypertension with an onset of 1990. The January 2013 VA examination report notes that the Veteran does have a history of poorly controlled hypertension that is currently controlled with medication. It was noted that the Veteran was diagnosed with hypertension but that the date of diagnosis was unknown. It was noted that the Veteran reported a history of hypertension since the 1980s. The examiner opined that the Veteran's hypertension was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Her rationale was that the Veteran had no report or evidence of hypertension or heart condition in service. When the Veteran left service, his blood pressure was 120/76 in June 1966. The examiner also opined that the Veteran's claimed condition is less likely than not proximately due to or the result of his service-connected osteomyelitis. In her rationale, she noted that infection does not cause heart disease or hypertension. The examiner noted that the Veteran reports the medication he took 50 years ago for pain in his leg caused his hypertension and heart condition. She noted that the medication was Darvon. She noted that studies indicated that a very small percentage of people who were using this medication suffered sudden death or stroke. The Veteran has not had the medication in many years and it did not cause sudden death or stroke, as he has never had this. It never caused hypertension. Additionally, the examiner noted, the risk is gone after discontinuation of the medication. As the medication has not been around in many years, hypertension and heart condition are not a result of use of Darvon in service. Hypertension was never found to be associated with the medications or his condition. A May 2017 VA examination report opines that the Veteran's hypertension was less likely than not incurred in or caused by the claimed in-service injury, event, or illness (to include osteomyelitis). Her rationale was that, according to medical literature, the Veteran may have initially presented with elevated blood pressure post injury, but that this was due to adrenaline surges, such as fear, anxiety, or pain, but there was no diagnosis of hypertension during service. She noted that the Veteran is diagnosed with essential hypertension, which by definition has no identifiable cause. This is the most common type of hypertension, affecting 95 percent of hypertensive patients. It tends to be familial and is likely to be the consequence of an interaction between environmental and genetic factors. A nexus for the claimed condition has not been established. She also noted that the prevalence of essential hypertension increases with age. With respect to aggravation, the May 2017 VA examiner opined that the Veteran's hypertension was not at least as likely as not aggravated beyond its natural progression by his service-connected residuals of a left tibia injury, to include osteomyelitis, and to include medications taken to treat the disability. As a rationale, she noted that, according to review of medical literature, post-injury elevated blood pressure is due to adrenaline surges, such as fear, anxiety, and pain. Based on the above, the Board finds that the Veteran does have a current diagnosis of hypertension. However, the earliest evidence of elevated blood pressure of record appears in a September 1987 VA medical record noting a blood pressure reading of 140/96. He did not manifest elevated blood pressure during service or within one year of separation from service. Therefore, service connection is not warranted based on an in-service finding of hypertension or on a presumptive basis for hypertension found to a compensable degree within the presumptive one-year period. Therefore, the Board must determine whether the evidence of record otherwise demonstrates a nexus between the Veteran's current hypertension and his military service, to include his service-connected residuals of a left tibia injury, to include osteomyelitis. The pertinent evidence that pertains to this issue appears in the January 2013 and May 2017 VA examination reports. The author of the January 2013 opinion is a physician's assistant, while the May 2017 report's author is a nurse practitioner. These individuals are qualified through education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159(a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). These opinions are based on review of the record and on interview and physical examination of the Veteran. In rendering her opinion, the January 2013 examiner makes reference to the facts of the Veteran's case and pertinent medical principles, including medical literature on the use of Darvon and her professional expertise that the risk for hypertension is gone after discontinuance of the Darvon. She fully explains her rationale for finding it less likely as not that the Veteran's current hypertension is etiologically related to service, to include as due to medication taken for the treatment of osteomyelitis. The May 2017 VA examiner also references the facts of the Veteran's case and pertinent medical principles, and explains the nature of essential hypertension. With respect to the aggravation question, she provides a medical explanation as to why the post-injury increases in blood pressure were, in fact, due to adrenaline surges, and explains the mechanism by which these surges occur. For these reasons, the Board finds the January 2013 and May 2017 VA examiners' opinions are highly probative in the case at hand. The Board acknowledges that the Veteran himself believes that his current hypertension is related to service or to a service-connected disability. As noted above, the Board recognizes that there are instances in which lay testimony can provide probative evidence in medical matters, such as describing symptoms observable to the naked eye, or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As a layperson, the Veteran is not competent to link his hypertension to military service or to medication taken during service that occurred more than 20 years prior to the initial manifestations of his hypertension. Nor is he competent to provide a link between his hypertension and his left tibia injury, including osteomyelitis. Therefore, his opinion on the etiology of his hypertension is of no probative value. The Veteran has also asserted in his June 2009 substantive appeal that he has submitted an article that provides medical evidence that "suggests my service-connected osteomyelitis could affect many other issues I suffer, including those listed on this appeal." However, this article is not applicable to the Veteran's case, as it does not purport to make an etiological connection between osteomyelitis and hypertension. Furthermore, the language that is used in the article at issue (including its use of the terms "can" and "may" when discussing the relationship between osteomyelitis in one area of the body spreading to other areas) is far too speculative to support a grant of service connection. See Bostain v. West, 11 Vet. App. 124, 127- 28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus); Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative). Therefore, this article is far too speculative to provide probative evidence in support of the Veteran's claim. The Board will now address whether service connection is warranted for hypertension on a presumptive basis. As noted above, service connection may be granted for chronic disabilities, such as hypertension, if such are shown to have been manifested in service or manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The case of Walker v. Shinseki, 708 F.3d 1331(Fed. Cir. Feb. 21, 2013), elaborates on situations in which presumptive service connection may be granted for chronic disabilities. The first applicable situation is that in which a chronic disease is "shown in service (or within the presumptive period under § 3.307)." Walker, 708 F.3d at 1335. According to Walker, "[t]he regulation equates 'shown in service' with a reliable diagnosis of the chronic disease while in service.... To be 'shown in service,' the disease identity must be established and the diagnosis not be subject to legitimate question." Id. In the case at hand, the Veteran's service treatment records reflect that he was not diagnosed with hypertension in service. Therefore, hypertension was not "shown in service" as contemplated by the regulations and service connection cannot be presumptively established on that basis. Alternatively, under Walker, continuity of symptomatology may be used in place of nexus "[i]f evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not 'shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,' i.e., 'when the fact of chronicity in service is not adequately supported.'" Walker, 708 F.3d at 1336. According to Walker, "[t]he natural reading of the 'condition' noted in service is a condition indicative of a chronic disease, but not sufficiently indicative to demonstrate that the chronic disease is 'shown to be chronic.'" Id. at 1339. Walker also states that "in the situation where the veteran cannot establish a chronic disease 'shown' in the presumptive period for purposes of § 3.303(b) but can point to a chronic condition that was noted in the presumptive period but the notation was insufficient to support a diagnosis beyond legitimate question ... the veteran can benefit from continuity of symptomatology to establish service connection ...." The Board finds that the case at hand does not contain evidence of a chronic condition noted in service or within the presumptive period in which "the notation was insufficient to support a diagnosis beyond legitimate question." Again, the Board notes that there is no notation of hypertension in service, and there is no evidence of hypertension in service or to a degree of 10 percent or more within one year of separation from service to allow for the Veteran to establish service connection for hypertension through lay reports of continuity of symptomatology. In short, in the absence of competent nexus evidence linking the Veteran's hypertension to service, direct service connection is not warranted. In the absence of evidence of hypertension shown to a compensable degree within one year of separation from service, and in the absence of evidence of continuity of symptomatology since service, presumptive service connection for hypertension is not warranted. In reaching the decision above, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against entitlement to service connection for hypertension, the claim is not in equipoise. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's claim of entitlement to service connection for hypertension must be denied. ORDER Prior to July 25, 2015, entitlement to a rating of 10 percent, but no higher, for residuals of a left tibia injury, to include osteomyelitis, is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to service connection for hypertension, to include as secondary to a service-connected disability of the distal left tibia, is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs