Citation Nr: 18159578 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 18-50 438 DATE: December 19, 2018 ORDER Entitlement to service connection for hypertension is granted. Entitlement to service connection for benign paroxysmal positional vertigo is granted. FINDINGS OF FACT The preponderance of the evidence of record establishes that the Veteran’s hypertension was incurred during active. Benign paroxysmal positional vertigo had its onset in service. CONCLUSIONS OF LAW The criteria for entitlement to service connection for hypertension are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). The criteria for service connection for benign paroxysmal positional vertigo are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1982 to March 1992, July 2006 to November 2007, and April 2013 to April 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision issued by a Department of Veterans Affairs Regional Office (RO). The Veteran filed a notice of disagreement in October 2015 and was provided with a statement of the case in September 2018. The Veteran perfected his appeal with a September 2018 VA Form 9. In a September 2018 rating decision, the RO granted service connection for posttraumatic stress disorder with alcohol use disorder, moderate (claimed as mental condition to include adjustment disorder with mixed anxiety and depressed mood). As this is considered a full grant of the benefits sought on appeal, the issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Certain chronic diseases, which are listed in 38 C.F.R. § 3.309 (a), may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). 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. Id. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). A claimant “can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a).” Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Service connection may nonetheless be granted for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). 1. Entitlement to service connection for hypertension is granted. The Veteran contends that his currently diagnosed hypertension is due to his military service, to include his in-service blood pressure readings. See October 2015 statement. Turning to the evidence of record, the Veteran has a current diagnosis of hypertension as illustrated by the October 2014 VA examination. The Veteran’s service treatment records show that in July 1990, the Veteran was treated for a blood pressure problem. It was noted that the blood pressure measurement upon entering the emergency room was high and the Veteran reported previous episodes of high blood pressure readings. The Veteran’s sitting blood pressure readings were 140/96 and 130/100. The Veteran’s standing blood pressure readings were 130/102 and 120/104. It was also noted that the Veteran’s blood pressure was 152/96. The Veteran was diagnosed with “HTN questionable etiology.” As such, the Veteran’s claim turns on whether his currently diagnosed hypertension is related to his military service. In this regard, an October 1991 separation report of medical examination shows that the Veteran’s blood pressure was 134/78. An October 1991 separation report of medical history shows that the Veteran reported a history of “high or low blood pressure” without further explanation. A June 2009 private treatment record shows that the Veteran was diagnosed with hypertension. The Veteran was afforded a VA examination in October 2014. The Veteran reported that during active service he was diagnosed with and treated for hypertension. No etiology opinion was provided. The Veteran was afforded another VA examination in September 2018. The Veteran reported that the hypertension began in 2007. The examiner concluded that the Veteran’s hypertension was less likely than not incurred in or caused by his military service. The examiner explained that a review of the Veteran’s medical record was conducted and a physical examination was performed. The examiner noted a physical examination described as “Chapter Separation” on January 3, 1991, was reviewed. The examiner noted that the Veteran noted “I am in good health I take no medications”. The examiner noted that the Veteran checked “yes” for “high or low blood pressure” but made no remark to clarify. The VA examiner noted that the examining provider noted no abnormality. The blood pressure was 134/78, or normal. The examiner noted that review of the service treatment record from 1988 found an isolated blood pressure reading of 118/89 associated with an acute illness. The examiner stated that neither the 1988 isolated diastolic BP elevation, nor the self-reported possible “high or low blood pressure” are criteria for diagnosis of hypertension. The examiner noted that examinations from 1982, 1987, 1990 and 1991 found normal blood pressures. The examiner concluded that a nexus cannot be established to support the probability of hypertension during active duty service period of 1988 or 1991. While the September 2018 VA examiner addressed the blood pressure readings for the Veteran’s first period of service, she failed to address the October 1990 service treatment record that diagnosed “HTN questionable etiology”. As such, the Board assigns the opinion no probative weight. Furthermore, although there is no medical opinion in this case linking the Veteran’s current hypertension to service, as set forth above, when a veteran satisfies the requirements for a chronic disease shown in service (or within the presumptive period under § 3.307), then all subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Thus, if a veteran can prove a chronic disease “shown in service” or within the applicable presumptive period, and there are no intercurrent causes, the manifestation of the chronic disease present at the time the veteran seeks benefits establishes service connection for the chronic disease. The Federal Circuit has explained that “[b]y treating all subsequent manifestations as service connected, the veteran is relieved of the requirement to show a causal relationship between the condition in service and the condition for which disability compensation is sought. In short, there is no ’nexus’ requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease.” Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013). In this case, the Veteran’s service treatment records contain a diagnosis of hypertension, a “chronic disease” within the meaning of section 3.309(a). Additionally, there is no probative evidence of any intercurrent causes to explain the Veteran’s post-service diagnosed hypertension. Id. Considering the foregoing, the Board finds that the evidence is sufficient to establish that the Veteran’s current hypertension was incurred during his active service. Therefore, service connection for hypertension is granted. 2. Entitlement to service connection for vertigo The Veteran contends that he is entitled to service connection for vertigo. Specifically, the Veteran contends that he was diagnosed with benign paroxysmal positional vertigo (BPPV) during service and vertigo is listed on his current VA problems list. See October 2015 statement. Turning to the evidence of record, the Veteran’s service treatment records show that on July 8, 2013, the Veteran was treated for BPPV. It was noted that the symptoms resolved with meclizine, Zofran, and “RL”. The Veteran was sent to his quarters for 24 hours and instructed to return the following morning for reassessment. A July 9, 2013, service treatment records shows that the Veteran was seen for BPPV. The Veteran was diagnosed with vertigo. It was noted that the symptoms had greatly improved and mostly resolved. The Veteran was instructed to continue meclizine. A July 10, 2013, service treatment record shows that the Veteran was seen for follow-up for BPPV. The Veteran was diagnosed with vertigo. It was noted that meclizine was administered and reposition maneuvers were carried out twice. The Veteran was also given information handouts along with additional meclizine. A February 10, 2014 service treatment record shows that the Veteran reported concerns with sleep and periods of dizziness/vertigo. The Veteran separated from service in April 2014. VA treatment records dated August 2014 to March 2018 are reveal a VA Recorded Problems List, printed in October 2015, that notes vertigo. VA treatment records are otherwise absent of any complaints or treatment for vertigo. An October 2014 VA ear examination shows that it was noted that the Veteran reported that he was diagnosed with vertigo while on active duty. He reported that he experiences episodic nausea and dizziness, described as seeing spots in the morning upon waking up that last for 15 to 20 minutes. On physical examination the Veteran’s external ear, ear canal, tympanic membrane, and gait were noted as normal. The Romberg test was normal or negative. The Dix Hallpike test for vertigo was normal with no vertigo or nystagmus during test. The Veteran’s limb coordination was normal. The examiner noted that there were no other significant diagnostic test findings and/or results. The examiner concluded that there was no objective evidence of vertigo upon examination. In a June 2015 statement, D.M., reported that the Veteran had been required to leave work on numerous occasions due to vertigo. In an October 2015 statement, C.M., reported that he works with the Veteran daily and has seen the Veteran leave work on several occasions due to his vertigo. C.M., also reported that he has spoken with the Veteran about his vertigo on several occasions. In an October 2015 statement, C.M., reported that he has witnessed the Veteran leave work numerous times due to his vertigo condition. By definition, BPPV is vertigo that “occurs in sudden, brief attacks” and recurs briefly “when the head is placed in certain positions such as with one ear down.” Dorland’s Illustrated Medical Dictionary, 2080 (331st ed. 2007). Therefore, BBPV is not expected to be continuous and the lay evidence is consistent with the sudden attacks at work and in the mornings reported by the Veteran and his colleagues. The Veteran is competent to observe and report symptoms of dizziness and nausea, and his colleagues are competent to report the incidents of the Veteran leaving due to reported vertigo. The Board finds no reason to doubt the credibility of these statements. Additionally, lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if the layperson is reporting a contemporaneous medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Here, the Veteran had been diagnosed and treated for these symptoms multiple times in service and had been informed that the symptoms were due to a diagnosis of BPPV. Recognizing these symptoms again within a year of separation from service is an example of a Veteran reporting a contemporaneous diagnosis of a medical condition. The Board finds the lay evidence competent and credible to show BPPV attacks occurring during the appeal period. While the VA examiner observed no vertigo on the day of the examination, this finding is not inconsistent with a current diagnosis of BPPV, because the Veteran simply was not experiencing a paroxysmal attack at the time of the examination. The Board concludes that the evidence is at least in equipoise as to whether the Veteran has a current diagnosis of BPPV. Given that service treatment records show continued BPPV as late as February 2014 and probative medical and lay evidence shows continued reports of vertigo in October 2014 and through 2015, the Board finds that the BPPV had its onset in service with recurrent symptoms into the appeal period and service connection is granted. LAURA E. COLLINS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Smart, Counsel