Citation Nr: 1808997 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 09-45 959 DATE THE ISSUE Entitlement to service connection for hypertension. ORDER Service connection for hypertension is denied. FINDING OF FACT The evidence of record does not indicate a confirmed diagnosis of hypertension. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1131, 1154, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 4.104, Code 7101 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from October 1966 to October 1968, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified before the undersigned acting Veterans Law Judge at a videoconference hearing in August 2010. This case was previously before the Board in September 2011, April 2016, and June 2017, when it was remanded for Agency of Original Jurisdiction (AOJ) development. The case has been returned to the Board at this time for further appellate review. With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 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 military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing 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 current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303, Hickson v. West, 12 Vet. App. 247, 252-53 (1999). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). VA regulations provide that, for a veteran who has been exposed to an herbicide agent during military service, service connection for certain enumerated diseases will be presumed. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Service connection may also be granted on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection on a secondary basis may not be granted without medical evidence of a current disability and medical evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512-14 (1998). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran seeks service connection for hypertension, which he contends was due to his Agent Orange exposure in the Republic of Vietnam. The record also suggests that hypertension may be due to the Veteran's service-connected diabetes mellitus. Although hypertension is not enumerated in section 3.309 as presumptively service-connected, a veteran can establish service connection for a disability due to Agent Orange exposure with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). To begin with, although several VA examiners noted a diagnosis of hypertension in the record, the August 2017 VA hypertension examination called this diagnosis into question. The relevant regulations require that the initial diagnosis of hypertension or isolated systolic hypertension be confirmed by blood pressure readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, n.1. The regulations define hypertension as a diastolic blood pressure of predominantly 90mm or greater, and isolated systolic hypertension as systolic blood pressure of predominantly 160mm or greater with diastolic blood pressure of less than 90mm. Id. The August 2017 VA examiner opined that the Veteran does not have a confirmed diagnosis of hypertension based on these criteria. Foremost, the examiner noted that the initial diagnosis of hypertension, made in 2008, was based on readings from two visits, one in February and the second in May. At these visits, two blood pressure readings were taken, resulting in reads of 143/77 and 130/88 at the February visit and 137/80 and 122/78 at the May visit. The Veteran was issued a prescription for Lisinopril, a blood pressure drug, at the May 2008 visit. Not only was the diagnosis of hypertension made in the May 2008 visit using diastolic readings from 77 to 88, it was made after just two separate days of blood pressure readings. That is to say, the diagnosis was made for the purposes of treatment and preventative care, which is a lower threshold than a finding of hypertension for the purposes of VA compensation. The August 2017 VA examiner also noted that the medication prescribed at the May 2008 visit, Lisinopril, has a modest effect on blood pressure, of about 8mm on systolic blood pressure and about 5mm on diastolic blood pressure. The examiner opined that, as the Veteran was prescribed a low dose of the medication, its effect would be even more modest. The examiner reviewed the Veteran's VA treatment records, which revealed a high diastolic blood pressure reading of 88 prior to February 2012 and 85 since October 2012. The Board notes that of the 36 blood pressure readings in the Veteran's VA treatment records after beginning the medication, just six are 80 or greater, the highest being 88 and 85. Even considering the ameliorative effect of Lisinopril, it cannot be said that the Veteran's diastolic blood pressure is predominantly higher than 90, as only two readings of 36 would be 90 or greater. None of the systolic blood pressure readings in the Veteran's VA treatment records are greater than 160; none are greater than 149. The Board further notes that in November 2012 the Lisinopril dosage was decreased by half, and the Veteran's blood pressure readings remained lower than the VA requirements for a diagnosis of hypertension. The Veteran underwent VA hypertension examinations in January 2012 and June 2016, both noting a diagnosis of hypertension made in 2008. Both appear to base this diagnosis on the Veteran's self-reported history and review of the VA treatment records. The January 2012 examiner responded "no" to the question regarding whether the initial diagnosis was confirmed by readings taken two or more times on at least three different days, while the June 2016 examiner responded "unknown." It is notable that the January 2012 examination resulted in the highest blood pressure readings in the record. Two readings were taken, with findings of 161/98 and 159/90. (On the June 2016 examination, three readings were taken, with findings of 117/79, 117/80, and 118/80.) Although no explanation was given for the January 2012 spike in the Veteran's blood pressure, viewing these readings in conjunction with those from the VA treatment records still does not make the Veteran's diastolic blood pressure readings predominantly 90 or greater. Similarly, the reading of 161/98, while it is a high blood pressure reading, does not meet the definition of isolated systolic hypertension, which requires readings predominantly over 160 with diastolic readings under 90. Accordingly, although the first two VA examinations operated on the premise that the Veteran had a diagnosis of hypertension, the Board finds the August 2017 VA examination to be the most probative. The examiner conducted a thorough review of the data available in the Veteran's VA treatment records and was unable to find evidence meeting VA's criteria for a diagnosis of hypertension. Not only was the initial diagnosis not confirmed using readings from three different days, all of the readings together show that the Veteran's diastolic blood pressure is not predominantly 90 or greater, or that the Veteran has isolated systolic hypertension, even considering the ameliorative effect of blood pressure medication. In essence, the August 2017 examiner determined that the previous diagnoses of hypertension are invalid. Even if the Board were to concede the diagnosis of hypertension, none of the medical opinions in the record support a nexus between the hypertension and the Veteran's Agent Orange exposure or between the hypertension and the service-connected disabilities. The January 2012 VA examiner initially opined that the hypertension was due to Agent Orange exposure, but provided no support for the link between herbicide exposure and hypertension. The examiner later recanted this opinion and offered the opinion that the hypertension could be related to service-connected diabetes mellitus, but emphasized that this opinion was speculative. The examiner submitted a third opinion noting that the diabetes mellitus was well controlled, and so it was less likely than not that the condition caused the hypertension. The June 2016 examiner provided a review of literature studying causation between the Veteran's service-connected disabilities and hypertension, none of which suggested a causation or aggravation of hypertension by diabetes mellitus, PTSD, peripheral neuropathy, hearing loss, or tinnitus. The examiner noted that the literature indicated that diabetes mellitus and hypertension share risk factors and often coincide in the same patient, but noted that the Veteran's hypertension was diagnosed in close succession to the diabetes mellitus. The August 2017 examiner agreed with these conclusions, but emphasized that he did not find evidence of a confirmed diagnosis of hypertension. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement is satisfied when a claimant "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim," McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or "when the record contains a recent diagnosis of disability prior to ... filing a claim for benefits based on that disability," Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). In this instance, although the record includes apparent diagnoses of hypertension within the appeal period, the August 2017 examiner determined that they were invalid. As the preponderance of the evidence shows that the Veteran does not have a diagnosis of hypertension according to VA regulations, the first element of service connection has not been met. See 38 C.F.R. §§ 3.102, 3.303, 4.104. Even (CONTINUED ON NEXT PAGE) conceding the first element, the preponderance of the evidence is also against a finding of a nexus between the diagnosis and the Veteran's service or service-connected disabilities. Accordingly, service connection for hypertension is not warranted. ____________________________________________ JOHN L. PRICHARD Acting Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD: K. Josey, Associate Counsel Copy mailed to: Disabled American Veterans Department of Veterans Affairs