Citation Nr: 1815266 Decision Date: 03/12/18 Archive Date: 03/19/18 DOCKET NO. 13-11 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Baxter, Associate Counsel INTRODUCTION The Veteran had active military service from August 2004 to August 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In February 2016, the Veteran testified before the undersigned in a Board videoconference hearing. The transcript is of record. In September 2017, the Board remanded this matter for updated VA treatment records and a medical addendum opinion. FINDINGS OF FACT 1. The Veteran was diagnosed with borderline hypertension prior to entering active military service. 2. The Veteran's pre-existing hypertension clearly and unmistakably did not increase in severity during service beyond its natural progression. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) in a May 2010 letter. 38 U.S.C. §§ 5100, 5102-5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2017). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, post-service treatment records, and VA examination reports. Relevant to the duty to assist, the Veteran's available service treatment records as well as post-service VA and private treatment records have been obtained and considered. The Veteran was provided a hearing before the undersigned VLJ in February 2016. As there is no allegation that either of the hearings provided to the Veteran were deficient in any way, further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). These claims were remanded in September 2017 to obtain outstanding VA medical records and obtain a medical addendum opinion for the Veteran's hypertension disability. In September 2017, VA treatment records were obtained from the Tomah Milwaukee. Additionally, a VA medical addendum opinion was obtained in October 2017. Accordingly, there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). II. Legal Criteria Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). For VA rating purposes, "hypertension" means that diastolic blood pressure is predominately 90 mm. or greater; "isolated systolic hypertension" means that the systolic blood pressure is predominately 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2016). A 10 percent disability rating is warranted when diastolic pressure is predominantly 100 or more or when continuous medication is shown necessary for control of hypertension with a history of diastolic blood pressure predominantly 100 or more, or when systolic pressure is predominantly 160 or more. When the Veteran is presumed sound at entrance, the burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The U.S. Court of Appeals for Veterans Claims (Court) in Horn v. Shinseki, explained that even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness. Rather, the burden is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. 25 Vet. App. 231, 235 (2012). On the other hand, where a disorder is noted on service entrance or a Veteran is otherwise not presumed sound on entrance, 38 U.S.C. § 1153 applies. In such claims, the evidence of record must simply show that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). "If the presumption of aggravation under section 1153 arises, the burden then shifts to the government to show a lack of aggravation by establishing 'that the increase in disability is due to the natural progress of the disease." Wagner, 370 F.3d at 1096 (citing 38 U.S.C. § 1153). This requires the government show by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition. Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003); Horn v. Shinseki, 25 Vet. App. at 235 (2012) ("Once the Veteran establishes worsening, the burden shifts to the Secretary to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease."); see also 38 C.F.R. § 3.306 (b). Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (quoting Yanerson v. West, 12 Vet. App. 254, 258-59 (1999)). The clear-and-unmistakable-evidence standard is an "onerous" one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)); see also Yanerson, 12 Vet. App. at 263 (Nebeker, C.J., concurring in part and dissenting in part) ("[O]nly an inference that is iron clad and copper riveted can be 'unmistakable.'"). The Veteran asserts that his blood pressure was elevated during his active service and remained elevated after service. In this case, a pre-service October 2003 letter from the Veteran's private physician indicated the Veteran was diagnosed with borderline hypertension. As such, a preexisting disorder is noted upon entry into service, and the Veteran cannot bring a claim for service connection for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder. In that case section 1153 applies and the burden falls on the Veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner, 370 F. 3d at 1096. Service treatment records (STRs) do not demonstrate a diagnosis of hypertension during active service. However, STRs indicated that the Veteran was diagnosed with borderline hypertension upon the entrance to active duty. The Veteran had to obtain a medical waiver from his private physician addressing the fact his blood pressure was normal for his age. An October 2003 letter, from the Veteran's private physician indicated that his blood pressure was normal for his age. The physician indicated that his readings were 140/60 and 130/68. The September 2003, enlistment report indicated that the Veteran's readings were 168/102; 159/95; 149/90; 158/95, and 166/86. Subsequent STRs indicated that the Veteran was never diagnosed with hypertension or prescribed any medications to control his blood pressure. Notably, a November 2008 dental health questionnaire the Veteran marked "no" to having hypertension. Post-service, an October 2009 private treatment documented the Veteran's blood pressure reading at 122/84. A September 2010 VA treatment note documented the Veteran's blood pressure reading at 126/80. The Veteran was afforded a VA examination in August 2010. The Veteran reported that his blood pressure had actually improved. He denied any symptoms and complications. The examiner reviewed the Veteran's claims file and medical records. The examiner diagnosed the Veteran with normal blood pressure. The examiner opined that there was no evidence of permanent aggravation of his pre-existing borderline hypertension. The examiner commented that there was borderline hypertension diagnosed prior to service and there was no evidence of permanent aggravation. The examiner indicated that there was no evidence of permanent aggravation of his pre-existing borderline hypertension. The readings from the VA enrollment examination and readings during the VA examination were normal. In addition, the Veteran was not currently receiving any treatment for hypertension. VA treatment records from 2010 through 2015 demonstrate that the Veteran was not diagnosed with hypertension or prescribed any medication to control his blood pressure. The Veteran was afforded another VA examination in June 2016. The Veteran reported that he had episodes of elevated blood pressure during service. The Veteran indicted that he was attempting to control his blood pressure through diet and exercise. He checked his blood pressure intermittently with readings in the 130s-140s/ 80-90s on average. The examiner noted that the Veteran was not diagnosed with hypertension. The current blood pressure readings included June 8, 2016 reading at 142/86, May 24, 2016 reading at 131/81, and June 1, 2015 reading at 133/71. His average pressure reading was 135/79. The examiner opined that the Veteran's hypertension was less likely as not related to high blood pressure during service. His rationale provided that during active service the Veteran's blood pressure readings were 168/88 on September 20, 2004 which he was seen for a sore throat. September 22, 2004 his reading was 145/87, October 28, 2004 his reading was 138/74, March 3, 2005 his reading was 152/90 and the Veteran as seen for body aches and fevers. March 4, 2005 his reading was 144/88 and the Veteran was seen for abdominal pain. March 8, 2005 his reading was 145/84 and he was seen for rectal pain. The examiner noted that per VA disability rating purposes, hypertension was diastolic blood pressure predominantly 90mm Hg or greater. Isolated systolic hypertension was systolic blood pressure predominantly 160mm Hg or greater and diastolic blood pressure less than 90mm Hg. A diagnosis must be confirmed by readings taken two or more times at least three different days. These criteria were not met during service. The examiner further noted that the Veteran did not meet the VA disability rating criteria for hypertension any time during the appeal period. Notably, an August 2016 VA treatment note diagnosed the Veteran with hypertension. The Veteran was prescribed Lisinopril to control his blood pressure. A VA addendum medical opinion was obtained in October 2017. The examiner noted that the Veteran was diagnosed with hypertension on August 2, 2016. At that time, he was placed on antihypertensive medication Lisinopril. The examiner further commented that the elevated blood pressure noted prior to active duty did not increase in severity during active service between August 2004 and August 2008. On enlistment examination report in in September 2003, blood pressure was 168/102 and upon recheck was 166/86. On another reading by the Veteran's civilian provider in October 2003, his blood pressure was 140/60 and 130/68 upon recheck. The examiner noted that the Veteran's blood pressure during service was not significantly different. Furthermore, he was not treated with antihypertensive medication during service. After a review of the evidence, the Board finds that the preponderance of the evidence is against the claim of service connection for hypertension. The Board notes that the Veteran was diagnosed with borderline hypertension before active service. Service treatment records do not show an actual diagnosis of hypertension. The fact that he may have had isolated elevated blood pressure readings during service is acknowledged. However, there is no evidence of blood pressure readings meeting the definition of hypertension based upon two or more readings on at least three different days. There is also no evidence of hypertension within one year of separation from his period of active duty, since the earliest notation of a diagnosis is in 2016, 8 years after his separation from service. Other evidence of record contains a blood pressure reading of 122/84 in October 2009, one year after his service separation. The August 2010 VA examiner commented that there was borderline hypertension diagnosed prior to service and there was no evidence of permanent aggravation. The August 2010 examiner indicated that there was no evidence of permanent aggravation of his pre-existing borderline hypertension. Furthermore, the October 2017 VA examiner opined that the elevated blood pressure noted prior to active duty did not increase in severity during active service between August 2004 and August 2008. It is noted that the doctor did not use the phrase "clear and unmistakable evidence," but this is not fatal to the opinion. It is the Board's duty, not the doctor's, to apply the facts to the law, and the examiner's opinion is one of multiple pieces of relevant evidence. Taken together, the evidence paints a clear and unmistakable picture that the Veteran's hypertension did not worsen during service. The record reflects that the Veteran's blood pressure was normal during service and that his current condition did not start until 2016. Moreover, August 2010 and October 2017 VA examiners opined that Veteran's hypertension was not aggravated or increased in severity from his service. The Board notes that the Veteran has not argued or stated that he had symptoms that indicated that he had hypertension. Also, the evidence of record reveals that the baseline readings, the post-service readings, the Veteran's post-service statements and actions, and the VA examiner's opinions established to a clear and unmistakable level that the Veteran's hypertension was not aggravated by service. Aggravation from service must be denied. As the weight of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Service connection for hypertension must therefore be denied. ORDER Entitlement to service connection for hypertension is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs