Citation Nr: 1805466 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 09-08 414 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel INTRODUCTION The Veteran served in the U.S. Navy from April 1979 to December 1996. This matter came before the Board of Veterans' Appeals (Board) on appeal from September 2006, August 2007, and March 2015 decisions of the Houston, Texas, Regional Office (RO). In September 2014, the Board reopened the Veteran's claim for service connection and remanded the appeal. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Hypertension originated in service. CONCLUSION OF LAW The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Hypertension is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a "continuity of symptoms" after service is required to establish service connection. 38 C.F.R. § 3.303(b). Additionally, as a chronic disease, hypertension will be considered to have been incurred in or aggravated by service if the disease becomes manifest to a compensable degree within one year from the date of service separation. 38 C.F.R. § 3.307(a)(3). A May 1990 service treatment record (STR) states that the Veteran had mild hypertension by history. A Hypertension Review a week later states that he was put on a low salt diet and a note on the record indicates that the Veteran was to be scheduled for a follow-up appointment. A June 1990 STR states that the Veteran was seen for a follow-up of hypertension and was diagnosed as normotensive. An October 1992 STR states that the Veteran had hypertension which was controlled by diet. On his November 1996 physical examination for service separation, no indication of hypertension was made and his blood pressure was normal. He indicated that he did not have high blood pressure on a report of medical history completed at that time. In July 1997, the Veteran was afforded a VA examination. The examiner wrote that the Veteran had a past medical history which was negative for hypertension. He wrote that the Veteran had elevated blood pressure 8 years prior but that was attributed to stress, he was put on a restricted diet, and his blood pressure returned to normal. At the examination, the Veteran had a blood pressure of 140/90 in the right arm and 140/86 in the left arm. The examiner diagnosed hypertension. The examiner wrote "The [V]eteran should be considered as having mild hypertension. Diastolic pressure in both arms was above normal. We would be glad to comply with the request of the Regional Office and consider five-day examination with blood pressure check; however, this is not feasible. Please note that this [V]eteran lives [far away]. By traveling to [this medical center] on five separate occasions, his blood pressure probably would be elevated just due to the traveling. Another option would be to have the five-day examination performed by a private doctor in [his hometown] but presently I do not think this is necessary. I advised him to stop using salt on his food, to try to lose some weight-we discussed exercises-and have his blood pressure rechecked. Presently, I do not think he needs medication." In a November 1998 statement, the Veteran wrote that he had hypertension and was told several times by Navy physicians that it would increase in severity as he aged. A May 2005 private treatment record indicates that the Veteran was authorized to refill hypertension medication. The date originally filled was listed as February 2005. A March 2007 private treatment record states that the Veteran had high blood pressure. A March 2009 VA examination states a prior medical history of hypertension. A November 2015 VA treatment record states that the Veteran "was found to have hypertension in 1995." In March 2016, the Veteran was afforded a VA examination. The Veteran reported that he was diagnosed with hypertension in 1992. The examiner stated a diagnosis of hypertension with a diagnosis date of 2005 because that was the first documentation she found in the record of him being prescribed medication. The examiner opined that the Veteran's hypertension did not originate in service because, although "there were instances when high blood pressure was suspected . . . no formal diagnosis or treatment [was] found." She noted that the diagnosis in 1990 of mild hypertension was not confirmed as a stress test was normal and multiple blood pressure readings thereafter were normal. The examiner did not discuss the October 1992 STR stating a diagnosis of hypertension. She also stated that the blood pressure readings at the July 1997 VA examination were insufficient to establish a diagnosis of hypertension. This conclusion was based on a definition of hypertension suggested in 2003-6 years after the July 1997 examination and diagnosis. The examiner noted that average blood pressure readings from 1985 to 1996 was 133/79 and, therefore, concluded he did not have hypertension in service. She noted that the average readings between August 1997 and October 1998 was 132/83 and also did not meet the criteria for a diagnosis of hypertension. The evidence is in equipoise as to whether the Veteran's hypertension originated in service. Some STRs and a November 2015 VA treatment record indicate that the Veteran was diagnosed with hypertension while in service. The VA examination 7 months after service separation states no prior history of hypertension but diagnosed the disorder at that time. The March 2016 examination report states that hypertension first began in 2005 and concluded that it did not originate in service. In cases such as these, the benefit-of-the-doubt rule, codified at 38 U.S.C.A. § 5107 provides that: The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. The implementing regulation at 38 C.F.R. § 3.102 restates the provision in terms of "reasonable doubt." Evidence is in "approximate balance" when the evidence in favor or and opposing the veteran's claim is found to be almost exactly or nearly equal. The statutory benefit of the doubt rule applies when the factfinder determines that the positive and negative evidence relating to a veteran's claim are "nearly equal," thus rendering any determination on the merits "too close to call." Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Affording the Veteran the benefit-of-the-doubt, the Board finds that the Veteran's hypertension originated in service. As hypertension is a chronic disease, and the Veteran has a current diagnosis of hypertension, no nexus opinion is necessary and the disorder is presumed to have been incurred in service. See Walker, 708 F.3d at 1331. Therefore, service connection is warranted and the claim is granted. ORDER Service connection for hypertension is granted. REMAND The case is REMANDED for the following action: 1. Reasons for the Remand: Entitlement to a TDIU requires an accurate assessment of the functional impairment associated with all of the Veteran's service-connected disabilities. Harris v. Derwinski, 1 Vet. App. 180 (1991). In light of the grant of service connection for hypertension, the issue of entitlement to a TDIU should be readjudicated by the RO following assignment of the effective date and an appropriate rating for hypertension. 2. Readjudicate the issue of entitlement to a TDIU. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran 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 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. §§ 5109B, 7112 (2012). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs