Citation Nr: 19122000 Decision Date: 03/26/19 Archive Date: 03/23/19 DOCKET NO. 18-11 670 DATE: March 26, 2019 ORDER The motion for reversal or revision of a July 2014 decision in which the Board of Veterans’ Appeals (Board) denied service connection for hypertension, on the basis of clear and unmistakable error (CUE), is denied. FINDING OF FACT In July 2014, the correct facts, as they were known at the time, were before the Board, and the statutory and regulatory provisions extant at the time were correctly applied. CONCLUSION OF LAW The July 2014 Board decision that denied service connection for hypertension does not contain clear and unmistakable error. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400-20.1406. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1972 to November 1972. The Veteran, who is the moving party, has filed a CUE motion in February 2018 for revision or reversal of a July 2014 Board decision that denied service connection for hypertension. Also, this appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). Analysis A prior final Board decision must be reversed or revised where evidence establishes that there is CUE in the prior final decision. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 20.1400-02. All final Board decisions are subject to revision on the basis of CUE except for those decisions which have been appealed to and decided by the Court and decisions on issues which have subsequently been decided by the Court. 38 C.F.R. § 20.1400. Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board’s Rules of Practice. 38 C.F.R. Part 20. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated”; and (3) the commission of the alleged error must have “manifestly changed the outcome” of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff’d, 642 F. App’x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Vanerson v. West, 12 Vet. App. 254, 258-59 (1999) (citing definition of “clear and unmistakable error” in Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board’s adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1403, 20.1404. The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442. By way of background, the Board notes that the Veteran initially filed a claim for service connection for hypertension in May 2010. In a September 2010 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO), denied the Veteran’s claim on the basis that his hypertension pre-existed service and it was not aggravated by his service. The Veteran filed a notice of disagreement (NOD) in December 2010 and a statement of the case (SOC) was issued in June 2012. The Veteran filed a VA Form 9 (substantive appeal) in July 2012. The Veteran provided testimony before the Board in June 2013 and a hearing transcript was associated with the record. In a July 2014 decision, the Board affirmed the RO’s decision and denied the claims for service connection for hypertension. In October 2017, the Veteran filed an application to reopen his claim for service connection for hypertension, which the RO denied in October 2017. The Board’s July 2014 denial is no longer appealable to the Court, as more than 120-days has passed since the issuance of the Board decision and reconsideration was not sought. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100; see Gates v. Nicholson, 19 Vet. App. 376 (2005); May v. Nicholson, 19 Vet. App. 310, 320 (2005). As such, the Board’s July 2014 decision is final and may be collaterally attacked on the basis of CUE. In a February 2018 motion, the Veteran, through his attorney, contends that the Board’s July 2014 Board decision failed to properly apply the law as it existed at that time by failing to properly apply the presumption of soundless, and thus it was clearly and unmistakably erroneous. Specifically, the Veteran’s attorney contends that the Veteran may have suffered from pre-hypertension prior to active duty service, but that hypertension is a separate disease entity, and that disease clearly and unmistakably did not pre-exist service and the Board failed to meet it burden that hypertension clearly and unmistakable existed prior to service. He points out that the Veteran’s hypertension during service did not meet the definition of hypertension as defined under Diagnostic Code 7101, diastolic blood pressure predominately 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic pressure of less than 90mm. In addition, Note (1) to Diagnostic Code 7101 states in part that hypertension must be confirmed by readings taken two or more times on at least three different days. The Veteran’s attorney also contends that the Board also failed to show that hypertension, a condition not noted on service entrance examination, was not clearly and unmistakable aggravated by service, and thus is entitled to the presumption that it was aggravated as a matter of law. As a threshold matter, the Board finds that the arguments advanced by the Veteran and his attorney allege CUE with the requisite specificity, and thus meet the filing and pleading requirements of 38 C.F.R. §§ 20.1400(a), and 1404(a), (b). The Veteran’s service treatment records (STR) reflect that the Veteran received a Regular Army examination in July 1972. At this time, clinical evaluation was normal with respect to the vascular system. The Veteran’s blood pressure when sitting measured 128/88. See July 1972 Report of Medical Examination. The Veteran then denied any history of high or low blood pressure, dizziness or fainting spells. See July 1972 Report of Medical History. About 8 days after entering active duty, the Veteran passed out. See August 10, 1972, Troop Medical Clinic note. At the time of this incident, it was noted that the Veteran had no history of previous high blood pressure, although at this time he related that he was told that he would develop hypertension later in life. His blood pressure then measured 180/80 in the morning and 156/84 in the evening. The Board also notes additional blood pressure readings were taken the following days, recorded as 154/90 in the morning and 152/86 in the evening on August 11, 1972, and 142/90 in the morning and 148/88 in the evening on August 12, 1972. An August 21, 1972, STR notes that systolic hypertension was in the 142-180 range, 6 out of 6 times with no diastolic pressure above the 80-90 range. An August 24, 1972, Release of Medical Information (ROI) contains a notation from the Veteran’s pre-service treating doctor, Dr. S. The ROI reflects that Dr. S. informed that the Veteran’s blood pressure measured 140/82 on November 5, 1970, when the Veteran was seen for a civil service physical. The Veteran was ultimately assessed as having high blood pressure, specifically systolic hypertension with consistent readings of 140 mm or more of systolic blood pressure. He underwent Medical Board proceedings in early October 1972. After evaluation by a Medical Board, the Veteran’s hypertension was noted as existing prior to service, and as not caused or aggravated by service. A review of the claims files discloses the presence of VA medical records beginning in May 2010. A review of these records documents assessed and treated hypertension, but no evidence linking the condition to service, to include by means of aggravation. Of record is a July 2010 letter from P.C.G., M.D. The letter documents assessments of hypertension, and other disorders, but no etiology opinion for hypertension. In a July 2012 statement, the Veteran related that although blood pressure readings “were marginal,” they were consistently higher following the “incident” that led to his discharge. He related that after he consulted with his wife, that they had reached the conclusion that “more medical evidence” existed that his hypertension was not “temporary.” In a February 2013 statement, the Veteran referenced the Medical Board proceedings of October 1972. He noted that his blood pressure measured 128/88 at entrance and suggested that high blood pressure readings prior to service were “anomalous,” but that his high blood pressure readings following service were consistently high. He related a history of being told that he had high blood pressure during a physical education college class he took a year following his discharge. He related that his blood pressure had measured 160/90 at that time and was not reduced by exercise. He stated that since discharge, he did not have a normal blood pressure reading and had dizziness, headaches and occasional profuse sweating, that he attributed to hypertension. He related that by the time he had reached the age of 34, his blood pressure readings were averaging 170/90-95. He contended that his blood pressure was borderline before induction and turned to full hypertension prior to his discharge. He related that he was unable to obtain any records dated contemporaneous to service. As noted above, in June 2013, the Veteran was offered a hearing before the Board. At the hearing, he reiterated his assertions that he did not have hypertension in service, and that the condition began therein and existed to present. His representative emphasized that the Medical Board proceedings in which hypertension was found to pre-exist service was not sufficient evidence to determine that the condition did clearly and unmistakably pre-exist service and urged that the presumption of soundness attach. The Veteran felt that the in-service finding of systolic hypertension was thus sufficient to grant the claim. He acknowledged the systolic reading of 140 taken by Dr. S. prior to entrance, but noted that blood pressure readings taken at the entrance examination were normal. He testified that he did not have health insurance for quite some time after service. In March 2014, the Board obtained a Veterans Health Administration (VHA) expert opinion, based upon a full review of the claims file and pertinent medical evidence. The opinion notes that in 1972, the Veteran denied any history of hypertension, although he had related that he had been told that he would develop hypertension later in life. A history of family hypertension was noted, as was a personal history of smoking. The expert noted the November 1970 blood pressure reading of 140/82 taken in November 1970 by Dr. S. and that the Veteran had blood pressure readings of 128/88 at entrance and was found qualified for duty. In terms of service, the expert noted that the Veteran passed out 8 days into service and outlined blood pressure readings taken at that time and that medical consultation in August 1972 showed that the Veteran had been “ill at ease.” He found unclear whether the Veteran had a sole diagnosis of hypertension, or to what role anxiety may have had. He noted that in October 2010 the Medical Board recommended separation from the service due to systolic hypertension. The VHA expert related that hypertension is often silent, imperceptible and insidious, and was a chronic disease. He related that borderline hypertension or pre-hypertension is defined as systolic blood pressure 120-139 mmHg or diastolic blood pressure 80-89 mmHg, and that primary hypertension was defined as readings that exceeded these values. He noted that the record documented a November 1970 reading of 140/80 and concluded that hypertension thus pre-existed service. He explained that at entrance the Veteran’s readings were consistent with pre-hypertension and explained that the Veteran had numerous clinical variables often cited to predict the development of hypertension, including pre-hypertension, smoking and a family history of hypertension. The expert found no “etiological relationship” to service and noted that in any person, blood pressure fluctuates throughout the day and that blood pressure readings may show considerable variability. He noted that anxiety, stress, emotional distress and physically demanding activity can all elevate blood pressure. He explained that some of these factors may have played a role in some of the in-service readings, noting that the Veteran did report feeling “ill at ease” in service. The expert saw the variations in blood pressure as not unusual, noting that on multiple occasions the Veteran’s blood pressure neared that of the November 1970 blood pressure of 140/82. He noted that hypertension progressed naturally, if untreated, and related that he could not conclude that hypertension had permanently worsened as a result of service. In the July 2014 decision, the Board determined “[a]s hypertension was not noted by the examiner at entrance in the examination report, the Veteran is presumed sound at entry. However, the Board finds that hypertension clearly and unmistakably pre-existed service. The evidence clearly establishes that the Veteran had a blood pressure reading of 140/80 prior to service and the March 2014 VHA opinion finds that this shows pre-existing hypertension. Although the expert did not explicitly state that it was clear and unmistakable that the Veteran had pre-existing hypertension, his statement was nonetheless unequivocal when he found that the pre-service reading of 140/80 showed hypertension. The Board also finds that it is clear and unmistakable that the pre-existing hypertension was not aggravated during service. Although the Veteran’s blood pressure readings following entrance were higher than noted at entrance, the March 2014 expert opinion indicates that these were fluctuations inherent the disease and related to factors such as stress. Moreover, the expert opinion concludes that hypertension was not permanently worsened by service. Accordingly, the Board finds that the evidence is clear and unmistakable that pre-existing hypertension was not aggravated in service.” The law and regulations in effect at the time of the July 2014 Board decision, which has not changed, in pertinent part, provides service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred 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” - the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C. § 1111. VA regulation provides that the term “noted” denotes “[o]nly such conditions as are recorded in examination reports,” 38 C.F.R. § 3.304 (b), and that “[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions.” 38 C.F.R. § 3.304(b)(1). To rebut the presumption of sound condition for conditions not noted at entrance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003), 70 Fed. Reg. 23027 (May 4, 2005); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A pre-existing injury or disease will be considered to have been aggravated by active 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; 38 C.F.R. § 3.306; Green v. Derwinski, 1 Vet. App. 320 (1991). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. A lack of aggravation during service can be shown by establishing by clear and unmistakable evidence either that there was no increase in disability, or that any increase in disability was due to the natural progression of the pre-existing condition. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Wagner, 370 F.3d at 1096; Horn v. Shinseki, 25 Vet. App. 231, 235. The Veteran “need not produce any evidence of aggravation in order to prevail”; instead, the burden is on the VA to identify affirmative evidence demonstrating that there was no aggravation. Horn, 25 Vet. App. at 235. The burden is not met by finding that the record contains insufficient evidence of aggravation. Id. Here, the Veteran’s July 1972 enlistment examination report notes a normal blood pressure reading with no history of high blood pressure. Accordingly, the Board recognized that the presumption of soundness was applicable, but also found that the presumption was rebutted. The Board found that there was clear and unmistakable evidence showing that the Veteran’s hypertension pre-existed service. In so finding, the Board relied on the elevated blood pressure readings to include 180/80 and the subsequent results reflecting systolic blood pressure readings in the 154-160 range with diastolic pressure readings in the 80-90 range; the findings of the August 24, 1972, ROI which noted that the Veteran’s blood pressure measured 140/82 on November 5, 1970 prior to service, when the Veteran was seen for a civil service physical; and the October 1972 Medical Board proceedings that assessed the Veteran as having high blood pressure, specifically systolic hypertension with consistent readings of 140 mm or more of systolic blood pressure, and determined the Veteran’s hypertension was noted as existing prior to service, and as not caused or aggravated by service. With regard to the argument of the Veteran’s attorney’s that his blood pressure readings in service were not consistent with VA’s definition of hypertension under 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, although the Veteran’s systolic blood pressure reading was recorded once as above the 160mm systolic blood pressure (180/80 in August 1972) during service as defined as systolic hypertension under DC 7101, the definition of hypertension referenced by the physicians during service differs from VA’s established definition for compensation purposes. As noted in the October 1972 medical Board evaluation, systolic hypertension was defined as “consistent readings of 140mm or more of systolic blood pressure.” See also DORLAND’s ILLUSTRATED MEDICAL DICTIONARY 896 (32d ed. 2012) (defining hypertension simply as “high blood pressure” and noting that “various criteria for its threshold have been suggested, ranging from 140 [] systolic and 90 [] diastolic to as high as 200 [] systolic and 110 [] diastolic”); but see id. at 1510 (defining prehypertension as “moderately increased blood pressure, [with] a systolic pressure of 120 to 139 or a diastolic pressure of 80 to 89”). Notably, under the Air Force regulation, which appears unchanged since 1953, in pertinent part, provides that hypertension was defined as an average systolic blood pressure of 140 mm. or more, or an average diastolic blood pressure of 90 mm. or more if the candidate is 35 years of age or under. Air Force Manual 160-1 (1953). Under current Air Force regulations, “[h]ypertension is defined as systolic pressure greater than 140 millimeters of mercury (mmHg) or diastolic pressure greater than 90 mmHg confirmed by manual blood pressure cuff averaged over two or more properly measured, seated, blood pressure readings on separate days within a 5-day period (isolated, single-day blood pressure elevation is not disqualifying unless confirmed on 2 separate days within a 5-day period).” See DOD Instruction 6130.03 (2018). Here, the Veteran underwent repetitive testing over a short period of time to assess whether he had hypertension, and here medical professionals determined that he met the established criteria (i.e., consistent systolic blood pressure readings ranging from 140mm to above) in diagnosing him with hypertension during active duty, which is also consistent with the definitions as provided by the Air Force regulations and has remained essentially unchanged, as well as the Dorland’s Illustrated Medical Dictionary. There is no law or regulation constraining the Board to define hypertension under the criteria set out in 38 C.F.R. § 4.104, DC 7101, for the purpose of determining whether hypertension existed prior to or during service. The Board’s reliance on the blood pressure readings, medical findings that he had systolic hypertension during service, as well as the May 2014 expert opinion concluding the same, supports the Board’s finding at that time and reveals that the existence of the Veteran’s hypertension prior to service is not debatable. See Vanerson, supra. In evaluating whether the Veteran’s pre-existing hypertension was aggravated by service, the Board found the aggravation prong of the presumption of soundness was clearly rebutted by the evidence of record and explained that although the Veteran’s blood pressure readings following entrance were higher than noted at entrance, the March 2014 expert opinion indicates that these were fluctuations inherent in the disease and related to factors such as stress and the expert concluded that hypertension was not permanently worsened by service. Here, in finding there is clear and unmistakable evidence as to both the pre-existence and the non-aggravation of the Veteran’s hypertension, the Board applied the correct, “clear and unmistakable error” standard as required under 38 U.S.C. § 1111 and Wagner, supra. Therefore, the attorney’s disagreement with these determinations amount to no more than a disagreement with how the facts were weighed or evaluated. A disagreement with how the facts are weighed or evaluated can never constitute CUE. Fugo v. Brown, 6 Vet. App. 40, 43 (1993); Russell v. Principi, 3 Vet. App. 310, 313 (1992). The Board also notes argument of the Veteran’s attorney that the Board failed to show that hypertension, which he asserts is a condition not noted on service entrance examination, was not clearly and unmistakably aggravated by service, and thus is entitled to the presumption that it was aggravated as a matter of law. This argument, however, is legally inconsistent, as he argues that his hypertension did not pre-exist service, and thus argues it was incurred during service (direct service connection) but contends that his hypertension was aggravated as a matter of law. The presumption of aggravation, however, applies only when pre-service disability increases in severity during service, and thus does not apply to direct service connection claims. See Beverly v. Brown, 9 Vet. App. 402, 405 (1996); Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995). See also 38 U.S.C. § 1153; 38 C.F.R. §§ 3.303(a), 3.306; Wagner, supra. In weighing the evidence before it at the time of the July 2014 Board decision, the Board engaged in an exercise of judgment that cannot now be said to constitute the kind of CUE, as such weighing of facts can never rise to the level of CUE. Fugo, supra; see also 38 C.F.R. § 20.1403(d)(3). Thus, the correct facts as they were known at the time were before the Board and the statutory and regulatory provisions extant at that time were correctly applied. As such, the moving party has not met the criteria required to revise or reverse the Board’s July 2014 decision denying service connection for hypertension, on the grounds of CUE, and the motion must be denied. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel