Citation Nr: 1827686 Decision Date: 05/04/18 Archive Date: 05/14/18 DOCKET NO. 13-34 667 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hypertension, claimed as secondary to service-connected diabetes mellitus (DM). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from January 1970 to December 1971. This matter comes to the Board of Veterans' Appeals on appeal from a December 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2017, the Veteran's representative withdrew the Veteran's request for a Board hearing. This matter was previously before the Board in October 2017 at which time the issue on appeal was remanded for additional development. There has been substantial compliance with the remand's development directives. Stegall v. West, 11 Vet. App. 268 (1998). In October 2017, the issue of entitlement to service connection for an eye disability, claimed as secondary to service-connected diabetes mellitus, was also remanded for additional development. In a March 2018 rating decision, the Veteran was granted entitlement to service connection for diabetic retinopathy. That decision constitutes a full grant of the benefit sought on appeal and the Board has limited its consideration accordingly. The Board notes that the record shows that private medical records were added to the Veteran's file following the issuance of the most recent supplemental statement of the case in March 2018. As this new evidence is not pertinent to the present issue on appeal, there is no prejudice to the Veteran in proceeding with a decision at this time. 38 C.F.R. § 20.1304(c). In March 2018 and April 2018, the Veteran raised new claims involving increased rating claims and claims for service connection. Those claims are not presently in appellate status and are thus not properly before the Board at this time. They are thus referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. FINDING OF FACT Hypertension did not manifest in service and is not otherwise etiologically related to active service, was not present to a compensable degree within one year of the Veteran's separation from active service, and was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by service, may not be presumed to have been incurred in service, and is not proximately due to or aggravated by a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Law and Regulations In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303 (d). 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." Davidson v. Shinseki, 581 F. 3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309 (a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303 (b). However, the United States Court of Appeals for the Federal Circuit has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d at 1331. Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). II. Analysis For VA compensation purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 or greater; and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 or greater with diastolic blood pressure less than 90. 38 C.F.R. § 4.104, Diagnostic Code 7101. The Veteran's service treatment records (STRs) are silent for a diagnosis of hypertension, or complaints that could be related to a later diagnosis of hypertension. In fact, a review of the STRs shows systolic blood pressure readings ranging from 104 to 120, and diastolic readings ranging from 72 to 85. The Veteran's blood pressure reading at his separation examination in December 1971 was 116/72. VA examination reports from May 2010 and December 2017 note that the onset of the Veteran's hypertension was in 1990, while private outpatient records from Quantum Wellness Center note a history of hypertension since 1980. In any event, the onset of hypertension is many years after the Veteran's 1971 discharge from service. Thus, as hypertension was not noted during service or within one year of service separation, the provisions for service connection for hypertension under 38 C.F.R. § 3.303 (a) or 3.307, 3.309 are not warranted. Also, since hypertension is not shown to be a chronic disability in service, the provisions under 38 C.F.R. § 3.303 (b) for a chronic disability since service is not warranted. As for service connection under 38 C.F.R. § 3.303(d), there is no medical evidence linking the Veteran's post-service diagnosis of hypertension to service and the Veteran does not contend as much. Rather, he contends that his hypertension is secondary to his service connected DM. 38 C.F.R. § 3.310. However, the VA examiners in May 2010 and December 2017 negate that contention. More specifically, the May 2010 VA examiner opined that the Veteran's hypertension was not a complication of his DM because there was no renal involvement, and the December 2017 VA examiner opined that the Veteran's hypertension was not caused by or aggravated by his DM. He explained that DM did not cause hypertension and it did not adversely affect his hypertension since there was no evidence of chronic kidney disease. Those opinions were based on an examination of the Veteran and a review of his claims file. They are found to be adequate for rating purposes. There is no contrary medical opinion of record. As for the Veteran's assertion that his hypertension is related to his diabetes mellitus, he said that there is medical literature that supports such a relationship. However, he did not identify or cite to the specific literature or research that supports that assertion. In short, the Board places more probative value on the negative opinions of the VA examiners in May 2010 and December 2017, who have expertise in medical matters as opposed to the Veteran's unsubstantiated lay opinion. For the foregoing reasons, the Board finds that the weight of evidence is against the Veteran's claim for service connection for hypertension on both a direct and secondary basis. 38 C.F.R. §§ 3.303, 3.310. In reaching that conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b). ORDER Entitlement to service connection for hypertension is denied. ____________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs