Citation Nr: 18143749 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 16-33 473 DATE: October 23, 2018 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for diverticulosis is denied. FINDINGS OF FACT 1. The Veteran does not have hypertension. 2. The Veteran’s diverticulosis is not attributable to service. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for diverticulosis have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1988 to October 1988, from October 1991 to August 1992, from July 1994 to July 1995, from August 1995 to February 1996, from March 1999 to June 1999, from March 2003 to March 2004, from August 2007 to September 2007, from February 2008 to March 2008, and from August 2011 to October 2011, with additional National Guard service. Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Diverticulosis The Veteran filed a July 2013 claim for service connection for diverticulitis. See July 2013 VA Form 21526EZ. In a January 2014 correspondence, the Veteran asserted that the challenging thing to establish for a member of the National Guard is that certain ailments occurred during periods when on a specific set of active duty orders. He reported that he came in the Air National Guard when he was 17 years old and he was placed on active duty orders hundreds of times over a 25-year career to perform specific missions. The Veteran asserted that, to complicate things more, there are multiple ways to be compensated for duty without being officially on active duty orders and many times lingering ailments are not identified until you get home from deployment and are no longer on orders. He reported that National Guardsmen are not able to access military health care facilities once their orders expire. He asserted that this is a real problem when seeking help which was the case with his diverticulosis. He reported that one month after returning from an especially stressful and physically demanding deployment in Afghanistan in 2011 he could no longer take the pain that was in his abdomen and sought treatment. The Veteran reported that he had been battling respiratory issues that the VA evaluated as service-connected and they were his higher priority when seeking medical attention after he returned to the United States. He reported that by the time he addressed diverticulosis, it was November 2011. He indicated that his orders expired one month before he received a diagnosis and treatment for diverticulosis. Regarding the first Shedden element, a November 2011 private urgent care note indicated that the Veteran was treated for abdomen pain and was diagnosed with diverticulitis. See November 2011 private treatment urgent care note. Turning to the second Shedden element, service treatment records (STRs) do not support that the Veteran was diagnosed with or sought treatment for diverticulosis in service. Further, the Veteran and his representative have conceded that STRs were silent for any treatment for his diverticulosis treatment during his military service. See June 2018 Appellant’s Brief and January 2014 Correspondence. Lastly, with regard to the third Shedden element, the June 2016 reviewing clinician opined that it is less likely as not (less than 50 percent probability) that the Veteran’s diverticulosis is related to service and/or is related to exposure to environmental hazards during his time in service. In support of her opinion, the reviewing clinician stated diverticulosis as a diagnosis is not on the Gulf War presumptive conditions list. She stated that he is not automatically service-connected for diverticulosis even though he served time during the Gulf War. She stated there is no scientific evidence supporting that diverticulosis occurs as a result of exposure to environmental hazards and explained that diverticulosis represents outpouchings in the colon at certain points in the colon where the walls are a bit weak which usually occurs over time with patients that may have difficulty with bowel movements, and, therefore, must push a lot when going to the bathroom. She continued to explain that this can cause the outpouchings and the cause is usually poor diet, genetics, obesity, aging, lack of exercise, and certain medications can make one prone to the condition. The reviewing clinician noted that the Veteran’s STRs were absent for complaints of diverticulosis or a diagnosis. In assessing the service connection claim, the Board has considered the Veteran’s lay assertions of record. Lay persons are competent to offer testimony regarding observable symptomatology and the Veteran is competent to report pain in his abdomen. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of diverticulosis to include whether it is related to a period of service, falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report his symptoms of pain, any opinion regarding whether diverticuloses is related to his military service requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). Thus, the Veteran’s opinion of the etiology of his diverticulosis is not competent evidence and is entitled to low probative weight. While the Board has considered the Veteran’s subjective complaints, it gives greater weight to the objective medical evidence and the opinion of the June 2016 reviewing clinician. Therefore, the preponderance of the evidence is against the claim for service connection for diverticulosis; thus, the benefit of the doubt rule does not apply. Accordingly, service connection for diverticulosis must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 54-56. 2. Hypertension The Veteran filed a July 2013 claim for service connection for hypertension. See July 2013 VA Form 21526EZ. Overall, the evidence of record does not indicate that the Veteran has hypertension. In a January 2014 correspondence, the Veteran asserted that his medical records show a 25-year progression of blood pressure increasing. He reported that as a military pilot he was given a thorough flight physical annually and when he entered the military in 1988 his records indicated completely normal systolic and diastolic pressures. The Veteran contends that physicals towards the latter part of his career showed a pre-hypertension state and a gradual progression to a hypertensive state. He reported that when he sought treatment and evaluation for his right shoulder’s torn labrum, his treatment notes indicated elevated blood pressure. He further asserted that Dr. B.R. was going to prescribe him high blood pressure medicine if it did not start to go down, but he never followed up with a subsequent visit to have it re-checked. The Board notes that 38 C.F.R. § 4.104 (2017) and Diagnostic Code 7101 define, for purposes rating service-connected hypertensive vascular disease, that “[h]ypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days” and that “[f]or purposes of this section, 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.” It does not appear that the Veteran’s VA treatment records contained blood pressure readings that met the outlined criteria. The Board acknowledges a July 2011 VA addendum note indicated the Veteran’s blood pressure was 129/96 and Dr. B.M. assessed the Veteran with elevated blood pressure. Further, a September 2008 cardiovascular treatment note indicated the Veteran’s blood pressure was 140/90. Although Dr. B.M. assessed the Veteran with “elevated blood pressure” in a July 2011 VA addendum note; however, this is not indicative of a hypertension diagnosis per VA regulations. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. Significantly, an April 2012 VA treatment note revealed the Veteran did not have a history of high blood pressure. Further, these appear to be the only treatment records where two or more blood pressure readings included diastolic blood pressure greater than 90mm. As such, the requirement in Diagnostic Code 7101 of readings “two or more times on at least three different days” was not met. Moreover, these readings were dated prior to the appeal period beginning with the Veteran’s July 2013 claim. The Board finds that, overall, the evidence of record does not include blood pressure readings dated during the appeal period that met the requirements outlined in Diagnostic Code 7101 for hypertension. Significantly, treatment notes throughout the record include a March 2012 treatment note indicated the Veteran’s blood pressure was 121/81. An April 2012 VA treatment note revealed the Veteran did not have a history of high blood pressure. A February 2013 STR indicated the Veteran’s blood pressure was 138/88. An April 2013 STR indicated the Veteran’s blood pressure was 142/85. A June 2013 VA primary care note revealed the veteran’s blood pressure was 135/84. Further, the treatment records did not include a diagnosis of hypertension. The Board also notes that the evidence of record did not indicate that the Veteran had hypertension in service or within one year of active service. The STRs did not contain a competent diagnosis of hypertension or manifestations that meet the VA criteria. Further, the Veteran’s representative has conceded that the Veteran’s STRs were silent for any treatment for his hypertension during his military service. See June 2018 Appellant’s Brief and November 2016 Statement of Accredited Representative. To the extent that the Veteran contends that his blood pressure readings were pre-hypertensive and showed a 25-year progression of hypertension, the Veteran’s STRs contained multiple blood pressure readings, including a November 2006 STR which noted a blood pressure reading of 117/72. A November 2005 STR indicated his blood pressure was 128/79. A January 2004 STR indicated the Veteran’s blood pressure was 120/80. A November 2004 STR showed his blood pressure was 134/80. A May 2003 STR noted his blood pressure was 128/82. His December 2002 report of medical examination for periodic flying physical indicated the Veteran had normal vascular system and normal heart upon clinical evaluation and his blood pressure was 102/70. A December 2002 STR indicated the Veteran’s blood pressure was 122/72. An August 2000 report of medical examination indicated the Veteran had normal vascular system and normal heart upon clinical evaluation and his blood pressure was 124/68. A November 1997 report of medical examination indicated the Veteran had normal vascular system and normal heart upon clinical evaluation and his blood pressure was 108/58. An August 1995 report of medical examination-flying personnel revealed the Veteran’s blood pressure was 132/78. A June 1994 STRs indicated the Veteran had blood pressuring readings of 126/76 and 120/76. An October 1993 report of medical examination indicated the Veteran had normal vascular system and normal heart upon clinical evaluation and his blood pressure was 118/76. A May 1991 report of medical examination indicated the Veteran had normal vascular system and normal heart upon clinical evaluation and his blood pressure was 112/62. A February 1989 STR indicated the Veteran’s blood pressure was 128/76. A May 1988 report of medical examination at enlistment indicated the Veteran had normal vascular system and normal heart upon clinical evaluation and his blood pressure was 138/58. None of the Veteran’s blood pressure readings met the requirements outlined in Diagnostic Code 7101. Regarding the Veteran’s assertion that when he sought treatment and evaluation for his right shoulder torn labrum, treatment notes indicated elevated blood pressure. STRs include November 2003, March 2004, and April 2008 medical record notes of right shoulder injury and treatment without complaints or assessments of elevated blood pressure. Further, a March 2004 STR indicated the Veteran was seen for his right shoulder condition and his blood pressure was 125/63 and a November 2007 STR indicated the Veteran was seen for right shoulder complaint and his blood pressure was 130/68. Overall, the STRs did not indicate that the requirement in Diagnostic Code 7101 of readings “two or more times on at least three different days” was met. The Board acknowledges the Veteran’s reports of having hypertension and his theory of pre-hypertension, but finds that the competent medical evidence of record, discussed above, is more probative and fails to provide a diagnosis of hypertension during the appeal period. In this regard, the Veteran is not competent to diagnose hypertension, as this is a complex medical question. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board finds that the Veteran does not have a current diagnosis of hypertension or manifestations that meet the VA criteria. Accordingly, the Board concludes that hypertension was not manifest during active service or within one year of active service and is not related to the Veteran’s active service and, to this extent, the Veteran’s claim therefore must be denied. 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Schick, Associate Counsel