Citation Nr: 18145167 Decision Date: 10/30/18 Archive Date: 10/26/18 DOCKET NO. 09-21 038 DATE: October 30, 2018 ORDER Entitlement to service connection for hypertension is denied. FINDINGS OF FACT 1. The Veteran was not noted to have hypertension during the clinical evaluation portion of his service enlistment physical, and there is no clear and unmistakable evidence showing that it existed prior to service. He is, therefore, presumed to have been sound on enlistment. 2. The Veteran’s hypertension was not present in service did not manifest to a compensable degree within one year of service discharge, and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the United States Army from August 1972 to September 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In August 2009, a Travel Board hearing was held at the RO before a Veterans Law Judge (VLJ) and a transcript is of record. In July 2011, the Board denied service connection for hypertension. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2012 Order, the Court granted a Joint Motion for Partial Remand (JMPR) vacating that decision and remanding it to the Board. In May 2012, the Veteran was notified that the VLJ who presided over his hearing was no longer employed by the Board. The Veteran was afforded the opportunity for another hearing. 38 C.F.R. § 20.707. He responded the next month and stated that he did not want another Board hearing. Therefore, there is no outstanding hearing request. The Veteran’s claim for service connection for hypertension was remanded by the Board in August 2012 and has now returned. The record also reflects that the Veteran had submitted a timely notice of disagreement (NOD) with respect to a February 2016 determination that denied service connection for posttraumatic stress disorder (PTSD) and entitlement to total disability rating based upon individual unemployability (TDIU). See VA Form 21-0958, dated December 1, 2016. The record shows that receipt of the NOD has been acknowledged by the RO in the electronic Veterans Appeals Control and Locator System (VACOLS) and that the RO is actively working on these appeals. The Board does not take jurisdiction over these issues simply to remand for a statement of the case. These issues will be the subject of a later Board decision, if ultimately necessary. In this case, 38 U.S.C. § 5103(a)-compliant notices were provided in July 2008, February 2010, August 2010, June 2012, and August 2012. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claims, including with respect to VA examinations. He has not identified any deficiency in VA’s notice or assistance duties. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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 between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Continuity of symptomatology may also provide a basis for a grant of service connection for those diseases defined as “chronic” by VA, which include both arthritis and hypertension. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Veterans are presumed sound upon entry into service except for conditions noted upon entry. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed.Cir.2004). The Secretary must rebut the presumption of soundness with “clear and unmistakable evidence that an injury or disease manifested in service was both preexisting and not aggravated by service.” Horn v. Shinseki, 25 Vet. App. 231, 234 (2012) (emphasis added). The determination of whether there is clear and unmistakable evidence that a defect, infirmity, or disorder existed prior to service should be based upon “thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof.” 38 C.F.R. § 3.304 (b)(1). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran seeks service connection for hypertension that he believes had its onset during military service. At his August 2009 hearing, he testified that he received VA treatment for hypertension within a year of service. For VA compensation 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. Multiple blood pressure readings are required to confirm the diagnosis of hypertension with 2 or more readings on at least 3 different days. 38 C.F.R. § 4.104, DC 7101, Note 1. Other medical authorities have suggested a minimum threshold of 140mm Hg systolic and 90mm Hg diastolic. Dorland’s Illustrated Medical Dictionary 909 (31st ed. 2007). Service treatment records show that just prior to his entry into active duty the Veteran had to undergo a three-day blood pressure check to screen for hypertension, thus raising the question of possible pre-existing condition. At that time, he had a blood pressure reading of 128/78 in August 1972 at enlistment. However, when his blood pressure was taken the following day it was 140/80 in the morning and 138/82 in the afternoon. The day after that, it was 128/78 in the morning. No diagnosis of hypertension or high blood pressure was made and no medication was required for treatment. The Veteran was considered fit for military service. Thus, there is no clear and unmistakable evidence showing that hypertension existed prior to service. Accordingly, the Board concludes that he was presumed sound on enlistment and that the analysis is herein limited to whether his current hypertension was incurred during military service. The remaining service treatment records fail to reveal any evidence of elevated blood pressure readings sufficiently high to require treatment, or to result in a diagnosis of hypertension. In March 1975, during an evaluation for headaches, the Veteran’s blood pressure was 118/78. In May 1975 it was 130/82. His separation physical in June 1976, showed blood pressure of 138/84. However, in August 1976, during an evaluation for complaints of chest pain, the Veteran’s blood pressure was 140/100 and he was referred for a three-day blood pressure check. His blood pressure readings were 124/98 and 124/82 on the first day, 118/74 and 124/84 on the second day, and 124/70 and 110/70 on the third day. Again, a diagnosis of hypertension was not made at that time, and medication was not required for treatment. As such, there is no evidence of hypertension during active military service. There is also no objective evidence that the Veteran was diagnosed as having hypertension within one year of service discharge. Although he reported that he had been treated for hypertension between January 1977 and December 1977 at the VA Medical Center in Louisville, the RO made a formal finding of the unavailability of these records. See November 2008 VA Memorandum. The earliest pertinent medical evidence shows that the Veteran underwent a cardiac catheterization in November 1989 at a private hospital. The treatment notes indicate that his blood pressure was 200/110, and he was noted to have hypertension. However, because hypertension was not demonstrated until many years following his separation from active duty, he may not be allowed service connection on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. There is also no competent evidence linking hypertension to the Veteran’s military service many years earlier, and he has not submitted any medical opinion that relates it to service/events therein. He underwent a VA examination in November 2008, at which he reported being diagnosed with hypertension while in Germany in 1975 and starting on medication at that time which he took for three months. During a follow-up evaluation in 1976, he was given more medication to take on a daily basis. He was later treated at VA in 1977 and given medication, which he took for 30 days and did not renew. His next treatment for hypertension was in 1989, and he had been on medication since then. The examiner noted that service treatment records were negative for a diagnosis of hypertension, but the opinion was inadequate due to a typographical error. In January 2009, a private treating physician noted the Veteran’s history of hypertension and long history of smoking. Although the Veteran felt that his hypertension was related to his military service, and appeared to have significant residual anxiety related to service which could have played a role in the development of hypertension, the examiner found it impossible to substantiate such a relationship. In a second statement in March 2010, the private physician wrote that, while the Veteran believed that his hypertension was related to his military service, it would be impossible to substantiate, but that he believed the Veteran’s sincerity that there was such a relationship. Unfortunately, this opinion, while supportive of the claim, is limited in terms of its ultimate probative value as the physician merely repeats the Veteran’s assertions that his hypertension is related to military service instead of stating his own opinion. See LeShore v. Brown, 8 Vet. App. 406 (1995) (mere transcription of lay history, unenhanced by any additional medical comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional.); Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Elkins v. Brown, 5 Vet. App. 474 (1993); Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (medical evaluation that is merely a recitation of a veteran’s self-reported and unsubstantiated history has no probative value). The opinion is also weakened by the fact that the examiner wrote that such causation is impossible to substantiate. The Board notes that a medical opinion, expressed in speculative language such as “may have caused” or “may be aggravated” does not provide the degree of certainty required for medical nexus evidence. Bloom v. West, 12 Vet. App. 185, 187 (1999); see also Obert v. Brown, 5 Vet. App. 30, 33 (1993). In other words, the private opinion indicates only the possibility of a relationship between the Veteran’s diagnosed hypertension and service, rather than the likelihood, or probability, of such a relationship. Such speculation is not legally sufficient to establish service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). At a September 2010 VA examination, the examiner confirmed the diagnosis of essential hypertension which he opined was less likely as not caused by, or related to, military service. The rationale was that the Veteran’s service treatment records showed elevated blood pressure at entry to service and there was no evidence that military service permanently aggravated the current hypertension. However, given that hypertension was not noted on the Veteran’s August 1972 entrance examination, the Board could not find that it preexisted service without clear and unmistakable evidence to that effect, as well as clear and unmistakable evidence that such preexisting disorder was not aggravated in service. Consequently, this VA opinion is inadequate. Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). To address the inadequacies in that VA opinion, the Veteran was scheduled for additional VA examination in November 2015. Following review of the claims file and examination of the Veteran, the examiner concluded that the evidence does not clearly and unmistakably show that the Veteran had hypertension upon entrance into service in August 1972. She explained that the 3-day blood pressure checks revealed normal blood pressure readings and thus did not establish a diagnosis of hypertension at that time. She also concluded that the Veteran’s hypertension was less likely than not (less than 50 percent probability) causally related to military service. Referring to service treatment records, she noted that there were two isolated incidents of elevated blood pressure at enlistment and just prior to separation. However, after each of these findings, a 3-day blood pressure check failed to meet the criteria to establish hypertension. So, while these readings met the criteria for an elevated blood pressure, there was no diagnosis of hypertension, and neither episode required treatment with antihypertensive medication. The examiner also referred to an in-service EKG report, from August 1976, which showed left ventricular hypertrophy (LVH) by voltage criteria only, but noted that this was not confirmed with any additional diagnostics (i.e. echocardiogram) and there was no evidence of a final lab report. Therefore, the report could not be considered the initial manifestations of the Veteran’s current hypertension, especially since there were no blood pressure readings meeting the criteria for hypertension. The examiner also noted that there was no objective medical evidence establishing treatment of hypertension during service or within a year of separation. Rather, the objective evidence clearly establishes that the Veteran’s hypertension was diagnosed during a hospitalization for unstable angina in 1989. After weighing all the evidence, the Board finds greater probative value in the recent 2015 VA opinion, and, in light of the other evidence of record, it is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran’s position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). While the private physician’s medical conclusions cannot be ignored or disregarded, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a medical opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). Based on the aforementioned discussion, the private medical opinion, while not discounted entirely, is entitled to less probative weight in view of the remaining evidentiary record. The evidence of record fails to establish that the Veteran’s hypertension was present in service, and there is no such evidence linking it to military service. Absent such evidence the claim cannot be granted. The preponderance of the evidence is against the claim and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.R. Bryant