Citation Nr: 1829690 Decision Date: 07/03/18 Archive Date: 07/24/18 DOCKET NO. 11-12 065 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for hypertension. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from July 1981 through July 1984 and from February through December of 2003, to include service in Grenada from October through December of 1983. He also claims service in the Persian Gulf from April through October of 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran's testimony was received during a February 2015 video conference hearing. A transcript of that testimony is associated with the record. This matter has been remanded by the Board, more recently in September 2016. The RO has taken action that substantially complies with the remand. The matter now returns to the Board for de novo review. FINDINGS OF FACT 1. The Veteran's hypertension was not incurred during his initial period of active duty service from July 1981 through July 1984 and did not result from an injury or event that occurred during that period of service. 2. The Veteran's hypertension pre-existed his period of service from February through December of 2003, however, the disease was clearly and unmistakably not aggravated beyond its natural progression during that period of service. CONCLUSION OF LAW The criteria for service connection for hypertension are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Analysis The Veteran asserts entitlement to service connection for hypertension. In his July 2008 claim, he states that the hypertension was diagnosed in January 1990. In his Board hearing testimony, he states that he experienced elevated blood pressure and headaches during service at Fort McClellan, Alabama. He states that those symptoms have continued. Generally, service connection will be granted if the evidence shows that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). Service connection requires an evidentiary showing of three essential elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a) (2017). Service connection for certain listed chronic diseases, such as cardiovascular diseases including hypertension, may be awarded on a presumptive basis and will be presumed to have been incurred during active service, even though there is no evidence of the disability during service, if such disability became manifest to a compensable degree within one year of separation from active duty. That presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (a) (2017). 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 an evidentiary showing 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) (2017). Service connection may also be granted for a disease that was first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303 (d) (2017). Service connection may be granted for a disorder that pre-existed service where the evidence shows that the pre-existing disorder was aggravated by the veteran's active duty service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). A pre-existing disability or disease will be considered to have been aggravated by active duty service if the evidence shows an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due merely to the natural progress of the disability or disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (a), (b) (2017). However, where a pre-existing disease or injury is noted on an entrance examination, federal statutes provide that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (a) (2017). For veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306 (b) (2017). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Under Note (1) of 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Note (1) defines "hypertension," for VA purposes, as diastolic blood pressure that is predominantly 90 millimeters or greater. "Isolated systolic hypertension" is defined, for VA purposes, as systolic blood pressure that is predominantly 160 millimeters or greater with a diastolic blood pressure of less than 90 millimeters. In a blood pressure reading, "systolic blood pressure" is represented as the top value, whereas "diastolic blood pressure" is expressed as the bottom value (for example, in a blood pressure reading of 120/70, the value of 120 represents the systolic blood pressure, while the value of 70 reflects the diastolic blood pressure). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or alternatively, whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (b) (2017). Service treatment records include records for in-service treatment received by the Veteran at Fort McClellan during his initial period of service in the early 1980's. Contrary to the Veteran's hearing testimony, those records show no evidence of elevated blood pressure or any diagnoses or treatment for hypertension. During an April 1986 medical examination, the Veteran reported that he was unsure as to whether he had a previous history of high or low blood pressure. Examinations of the heart and vascular system were normal, but the Veteran's blood pressure was borderline at 130/88 mmHg. Repeat blood pressure readings taken in May 1988 were elevated and consistent with hypertension. During a December 1991 medical examination, the Veteran reported affirmatively that he had a history of high blood pressure. The Veteran's blood pressure was still elevated at 130/100 mmHg and 146/106 mmHg during medical examinations conducted in September 1995 and December 2000 respectively. Although the Veteran's complete service treatment records appear to have been associated with the claims file, the file does not contain a copy of an enlistment examination report that corresponds with his second period of service from February through December of 2003. Hence, the Board is unable to ascertain whether the Veteran's hypertension was noted at the time of his enlistment into his second period of service. Nonetheless, given the medical evidence outlined above, the evidence clearly and unmistakably shows that the Veteran had hypertension that began in May 1988, prior to his second period of enlistment. Subject to the above, there is no indication in the service treatment records that the Veteran was ever treated during his second period of enlistment for hypertension, headaches, or other symptoms associated with hypertension. Post-service private and VA treatment records document ongoing hypertension and periodic elevations in the Veteran's blood pressure since 2005. Still, they provide no opinions as to whether the Veteran's hypertension was caused by his initial period of service, or, was aggravated beyond its natural progression during his second period of service. Indeed, there is no evidence in the treatment records that the Veteran's hypertension had worsened to any degree over time. The Veteran was afforded a VA examination in June 2009. Although the examination confirmed an ongoing hypertension diagnosis, the examiner also gave no opinion as to any etiological relationship between the hypertension and either of the Veteran's periods of service. Pursuant to the Board's September 2016 remand, the RO took steps to schedule the Veteran for a new VA examination of his hypertension. In that regard, VA contacted the Veteran in December 2017 and invited him to contact VA in order to schedule a date and time for the examination. No response was received. In February 2018, the Veteran was also notified that his appeal was being returned to the Board for adjudication. Still no response was received from the Veteran. VA's duty to assist veterans is not always a "one-way street." In other words, a veteran seeking help cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, where the Veteran has not responded to VA efforts to schedule a new VA examination for his hypertension, the Board is not inclined to remand this matter once again for more attempts to schedule a new examination. Rather, the Board will simply proceed to adjudicate the matter based on the evidence already of record. Overall, the evidence does not show that the Veteran's hypertension was either incurred during or caused by his initial period of active duty service from July 1981 through July 1984. Although the Veteran's hypertension clearly and unmistakably pre-existed his second period of service from February through December of 2003, the evidence shows clearly and unmistakably that his hypertension was not aggravated beyond its natural progression during that period of service or by an injury or event that occurred during that period of service. Although the Veteran is certainly competent to report his memory as to when his hypertension was first diagnosed and the onset and duration of associated symptoms such as headaches, his assertion that his headaches began during his initial period of service are contradicted by the information contained in his service treatment records, which show no evidence of hypertension prior to May 1988. Indeed, such assertions are also contradicted by later statements made by the Veteran during his April 1986 medical examination, wherein he expressed that he was unsure as to whether he had a previous history of high or low blood pressure, and his July 2008 claim, wherein he recalled the onset of his hypertension as being sometime in January 1990. Given these inconsistencies, the Board is not inclined to assign probative weight to the Veteran's assertions and instead assigned far greater weight to the other evidence in the record. The Veteran is not entitled to service connection for hypertension. This appeal is denied. ORDER Service connection for hypertension is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs