Citation Nr: 1807689 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 10-01 287 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to service connection for gout/joint pain, to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C. § 1117. 2. Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Laura A. Crawford, Associate Counsel INTRODUCTION The Veteran served honorably in the United States Marine Corps from August 1986 to November 1995. These matters come before the Board of Veteran's Appeals (Board) on appeal from a November 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. In August 2015, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for additional development. In December 2017, the Board requested a Veterans Health Administration (VHA) opinion, which was provided in January 2018. The issue of entitlement to service connection for gout/joint pain is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. VA will notify the Veteran if further action is required. FINDING OF FACT The Veteran's currently diagnosed hypertension first manifested in service. CONCLUSION OF LAW The service-connection criteria for hypertension have been met. 38 U.S.C. § 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.304, 3.307, 3.309(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that nexus may be demonstrated by a showing of continuity of symptomatology where the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a)). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. The Veteran asserts that he is entitled to an award of service connection for hypertension. With regard to a present disability, the Veteran has been diagnosed with hypertension per the post-service treatment records. See VAMC and private treatment records dated December 2006 to January 2016. Accordingly, the first Shedden element has been met. With regard to an in-service disability, the Veteran's service treatment records (STRs) do not reflect complaint or diagnosis of hypertension. However, blood pressure screening during service showed elevated blood pressure. For instance, blood pressure readings in February 1993, October 1993, January 1995, February 1995 were 140/90, 140/102, 138/92 and 123/88, respectively. Recently, in January 2018, a VHA medical examiner opined the blood pressure readings during service were consistent with mild hypertension. Accordingly, the Board finds sufficient evidence to establish onset of hypertension during active duty service, and the second element. With regard to nexus, the evidence conflicts. Medical opinions of record have declined to find nexus. First, a December 2016 VA examination opined that hypertension was unrelated to service. That examiner, however, identified only "normal blood pressure readings throughout service" and failed to take into account elevated blood pressure readings during service. Thus, the Board finds that this opinion is based on an inaccurate and incomplete medical history and is entitled to no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based upon an inaccurate factual premise has no probative value). Second, although the January 2017 VHA examiner identified mild hypertension in service, the examiner opined only as to secondary service connection. Because the examiner rendered no opinion as to direct service connection, the VHA opinion is amounts to non-evidence as to the question of direct service connection. In contrast, as a VA examiner noted, the Veteran's hypertension was first diagnosed in 1999, shortly after service. Additionally, post service VA and private treatment records document ongoing symptomatology and treatment for hypertension following his separation from service. The Board has considered remanding for a more thorough examination, but given the in-service findings of mild hypertension, the Veteran's current hypertension, and evidence of continuing symptomatology and treatments after service, and given there is no adequate evidence to contradict that evidence, the Board finds that the evidence in support of nexus is at least in equipoise. The benefit of the doubt will be conferred on the Veteran, and remand is not warranted. As all three elements of service connection are established, an award of service connection for hypertension is warranted. ORDER Entitlement to service connection for hypertension is granted. REMAND Although the Board regrets further delay, remand is necessary to ensure that there is a complete record on which to decide the Veteran's claim. In August 2015, the Board remanded the case to obtain a medical opinion regarding the nature and etiology of the Veteran's gout/joint pain, to include as secondary to his service-connected sarcoidosis. In December 2016, VA obtained a medical opinion. Although the examiner addressed the etiology of joint pain and gout as a disesae, the examiner did not discuss direct service connection or secondary service connection as related to the Veteran. Further, the examiner did not discuss whether gout/joint pain may have been part of a medically unexplained chronic multisymptom illness. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any healthcare providers who have provided treatment for his gout/joint pain. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate any outstanding records with the claims file. This request should include any outstanding records from the Hampton VAMC. 2. After obtaining any outstanding VA and private treatment records, VA should request an addendum opinion by a physician to ascertain the nature and etiology of the Veteran's gout. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should review all pertinent records associated with the claims file, including the service treatment records, post-service medical records, and lay statements. After review of the claims file, the physician should provide an opinion as to the following: (a) Based on review of the Veteran's claims file, is it at least as likely as not, i.e., there is a 50 percent chance or greater, that gout/joint pain had its onset in service? (b) If not, is it at least as likely as not that gout/joint was caused OR aggravated, i.e. permanently worsened, by the Veteran's service-connected sarcoidosis? In this regard, please note that temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. (c) Based on a review of the Veteran's claim file, is it at least as likely as not, i.e., there is a 50 percent chance or greater, that gout/joint pain constitute symptom of a chronic unexplained multisymptom illness? The supporting rationale for all opinions expressed must be provided. If the physician is unable to provide any required opinion, he or she should explain why the required opinion cannot be provided. If the physician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the physician should identify the additional information that is needed. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinions. 3. Then, readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, provide to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond. 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 of Veterans' Appeals 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. ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017). Department of Veterans Affairs