Citation Nr: 1756664 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 10-41 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected schizophrenia. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Ryan Frank, Associate Counsel INTRODUCTION The Veteran had active duty for training (ACDUTRA) from October 1979 to January 1980. He had additional Reserve and National Guard training between February 1983 and May 1986. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In the May 2009 rating decision, in pertinent part, the RO denied service connection for hypertension. The Veteran was originally scheduled to testify at a hearing before the Board in February 2012. The Veteran did not appear for the hearing, did not request a postponement, and has never provided good cause for the failure to appear. The Board will therefore proceed to adjudicate his claim as though the request for a hearing had been withdrawn. 38 C.F.R. § 20.704(d)(2017). This issue was previously remanded by the Board in May 2015, September 2016, and June 2017. FINDING OF FACT The Veteran's hypertension existed prior to his period of ACDUTRA and was not aggravated by his ACDUTRA or his service-connected schizophrenia. CONCLUSION OF LAW The criteria for a grant of service connection for hypertension have not been met. 38 U.S.C. §§ 1131, 1111, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disabilities noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. If a condition is noted on an entrance examination report, the presumption of soundness never attaches - the only benefits that can be awarded are for aggravation of such condition by application of 38 U.S.C. § 1153 and 38 C.F.R. § 3.306. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Even when the presumption of soundness does not apply, however, where there is an increase in disability from a preexisting injury or disease during active duty service, that preexisting injury or disease will be considered to have been aggravated by service unless there is a specific finding that the increase in disability is due to the natural progress of disease. 38 U.S.C. § 1153, 38 C.F.R. § 3.306. Service connection on a presumptive basis is generally not warranted for periods of ACDUTRA. See, e.g., Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). This includes the presumption of aggravation under 38 U.S.C. § 1153. Donnellan v. Shinseki, 24 Vet. App. 167, 171 (2010). However, where a veteran has been granted service connection for a disability based on a period of ACDUTRA, that veteran "is then entitled to the presumption of aggravation with respect to a different, preexisting disability shown to have worsened during the same period of ACDUTRA." Hill v. McDonald, 28 Vet. App. 243, 252 (2016). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that his hypertension had its onset in his period of ACDUTRA or was caused or aggravated by his service-connected schizophrenia. For rating purposes, VA defines hypertension as diastolic blood pressure of predominantly 90mm or greater, which must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2017). Isolated systolic hypertension is defined as systolic blood pressure of predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. Id. During his April 1979 entrance examination, in a sitting position, the Veteran's diastolic blood pressure was measured at 90mm and his systolic blood pressure was measured at 150mm. During his November 1979 separation examination, in a sitting position, the Veteran's diastolic blood pressure was measured at 74mm and his systolic blood pressure was measured at 122mm. At that time, the Veteran reported a history of high or low blood pressure. The Veteran was afforded a VA examination for hypertension in November 2016. The examiner diagnosed hypertension but was unsure of the date of onset. The examiner opined that the Veteran's hypertension was not incurred in or caused by his period of ACDUTRA because his service treatment records were silent for in-service hypertension. The Veteran was afforded an additional VA examination by the same examiner in July 2017. The examiner opined that the Veteran's hypertension was not proximately caused by, incurred in, or otherwise aggravated by his service-connected schizophrenia because there is no general medical consensus or evidence-based opinion supporting the contention that hypertension is related or aggravated by schizophrenia. Because the sitting blood pressure measurement during the Veteran's April 1979 entrance examination is consistent with the definition of hypertension given above, the Board finds that the Veteran's hypertension was noted on his entrance examination report and the presumption of soundness is not for application. Because the Veteran is service-connected for schizophrenia based on his period of ACDUTRA, the presumption of aggravation applies if his hypertension worsened during his period of ACDUTRA. Hill, 28 Vet. App. at 252. The question, then, is whether there was an increase in disability during service. The only blood pressure reading in the Veteran's service treatment records subsequent to the entrance examination is in the November 1979 separation examination report and it shows that the Veteran's blood pressure had significantly lowered, not worsened, during his ACDUTRA. Because the evidence does not show an increase in severity of the Veteran's preexisting hypertension during his period of ACDUTRA, there can be no finding that his preexisting hypertension was aggravated by service and service connection for hypertension on a direct basis is therefore not warranted. As discussed above, the November 2016 VA examiner's opinion with regard to direct service connection was based on an erroneous finding that the Veteran's service treatment records did not note hypertension. A medical opinion based on an inaccurate factual premise has limited, if any, probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). However, because the Board's findings that hypertension was preexisting and did not worsen during ACDUTRA necessarily preclude a grant of service connection on a direct basis, any further discussion of the probative value of this opinion is moot. The sole medical opinion of record on the subject of service connection on a secondary basis is unfavorable to the Veteran's claim and the Veteran has provided no evidence to support the contention that schizophrenia can aggravate hypertension. The Veteran is competent to report on matters observed or within his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in this case he is not competent to provide an etiology opinion for his hypertension. The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran in this case is not shown to possess any pertinent medical training or expertise that would make him competent to render an opinion on the etiology of any current hypertension or to express an opinion about when his symptoms first warranted any medical diagnosis. Thus, the Veteran's opinion that his current hypertension is etiologically related to his period of ACDUTRA or to his service-connected schizophrenia is not competent evidence and it cannot be assigned any probative weight. Rather, the medical findings and opinions of trained medical professionals warrant greater probative weight than the Veteran's lay contentions in this case. Because the preponderance of the evidence is thus against finding that the Veteran's preexisting hypertension was aggravated by his period of ACDUTRA or his service-connected schizophrenia, entitlement to service connection for hypertension is denied. In reaching the conclusions above, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hypertension is denied. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs