Citation Nr: 20005567 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 13-06 465 DATE: January 23, 2020 ORDER Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus type II, is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s current hypertension had its onset in active service. CONCLUSION OF LAW The criteria to establish entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from July 1987 to July 1991, from September 2001 to March 2002, and from April 2002 to June 2003. The Veteran also served in the Air National Guard from August 1991 to April 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, this claim was previously before the Board in March and September 2015. In its March 2015 decision, the Board found that new and material evidence had been received since the previous final denials of service connection for hypertension in rating decisions dated June and July 2006, reopened the claim, and remanded it for a VA examination. A VA examination and medical opinion were provided in May 2015. In its September 2015 decision, the Board found the May 2015 VA medical opinion inadequate insofar as the examiner failed to opine as to whether the Veteran’s hypertension was incurred in or related to active service and because the examiner did not recognize that the Veteran’s hypertension need not pre-exist his diabetes mellitus type II to be aggravated by it. Accordingly, the Board remanded the matter for an addendum opinion, and one was obtained in October 2015. The claim has now been returned to the Board for appellate consideration. The Board observes that additional VA medical records were added to the claims file after the RO’s adjudication in the November 2015 Supplemental Statement of the Case. However, the Board does not find these records to be pertinent to the instant claim and therefore, a waiver of RO consideration of this evidence is not necessary. See 38 C.F.R. § 20.1304(c) (2018) (requiring remand for initial RO review of pertinent evidence submitted after notification of certification of the appeal to the Board, “unless this procedural right is waived by the appellant or representative”). Moreover, since the Board is granting the benefit sought, there is no prejudice to the Veteran. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus type II Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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 claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). Any amount of aggravation is sufficient to establish secondary service connection; permanent aggravation or worsening of a non-service-connected disability is not required. See Ward & Neal v. Wilkie, No. 16-2157, 17-1204 (Vet. App. 2019). The Veteran’s diagnosed hypertension (a cardiovascular-renal disease) is considered by VA to be a “chronic disease” as listed under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestation in service will permit service connection. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Where a Veteran served ninety days or more of active service, and certain chronic diseases, such as hypertension, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. VA regulations provide that hypertension for VA purposes means that the diastolic blood pressure is predominantly 90 or more or systolic blood pressure is predominantly 160 or more. Hypertension must be confirmed by readings taken two or more times on three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2018). A lay person is competent to report on the onset and reoccurrence of current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board must determine on a case-by-case basis whether a Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). When all evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Here, the Veteran asserts that he currently has hypertension that had its onset in active service or, alternatively, was caused or aggravated by his service-connected diabetes mellitus type II. As an initial matter, the Board finds that the Veteran has a current diagnosis of hypertension. See May 2015 VA examination report. Turning to the evidence, the Veteran’s service treatment records (STRs) are silent as to any complaints, treatments, or diagnoses of hypertension. However, the Board notes blood pressure readings trending higher in STRs dated January 1990 through January 2003. See STRs dated January 1990 (blood pressure (hereinafter “BP”): 140/80), March 1990 (BP: 130/66), January 1991 (BP: 144/80), May 1991 (BP: 140/90), March 2002 (BP: 157/86), May 2002 (BP: 132/66), June 2002 (BP: 138/82), July 2002 (BP: 140/78), January 2003 (BP: 143/80). In an August 1992 VA “General Medical” examination, the Veteran’s blood pressure was noted to be 140/80. In a November 1999 letter, P.H., MD, wrote that the Veteran’s “mother and father both have high blood pressure and the [Veteran’s] father has diabetes, although the [Veteran] has had no manifestation of either disease. On physical examination, the blood pressure is 134/84.” After performing an electrocardiogram, exercise treadmill test, and echocardiogram on the Veteran, Dr. P.H. concluded, “I do not find any evidence of cardiac disease in this man. He is, however, at high risk for heart disease given his smoking history and adverse lipid profile. I have advised him to discontinue smoking and start a low fat diet.” In a September 2004 Air National Guard STR, the Veteran’s blood pressure was noted to be 140/90. In a November 2004 private treatment record, the Veteran was diagnosed with hypertension. His provider, T.M., MD, reported that the Veteran was not aware of elevated blood pressure readings in the past, but that he had three “significantly elevated” readings that day – 150/96, 160/100, and 158/108. At a November 2004 follow up appointment, the Veteran’s blood pressure was improved, but still elevated at 140/92. His provider, Dr. T.M., wrote that “if the level remains elevated on his next check despite diet and exercise I would recommend treatment with a medicine such as an ACE inhibitor potentially…” See November 2004 private treatment record. In a January 2005 private treatment record, the Veteran was prescribed Altace due to his consistently elevated blood pressure readings since the November 2004 visits. In a February 2005 private treatment record, the Veteran reported that his wife checked his blood pressure at home and that his levels average 130 over 78 to 80, which Dr. T.M. noted are “much improved compared to his levels in the clinic…” In a March 2006 private treatment record, the Veteran’s blood pressure was noted to be 131/91. In a November 2009 VA examination report regarding the Veteran’s diabetes mellitus type II, the examiner, R.J., MD, stated that the Veteran’s hypertension “was diagnosed probably in 2006,” found that the Veteran had “no complications related to hypertension,” and noted that he had “never been told of protein in his urine.” Based on his examination of the Veteran, Dr. R.J. opined that the Veteran had “Diabetes mellitus type II so far with no complications” and “Hypertension not due to diabetes.” In a December 2009 VA treatment record, the Veteran’s blood pressure was noted to be 141/95. In a September 2010 private treatment record, Dr. T.M. noted that the Veteran’s hypertension was “well controlled” and reported that he had “a very detailed discussion with [the Veteran] and his wife regarding the diabetic issues… I reminded him that some things are actually going fairly well, including his blood pressure has been normal…” In an October 2010 private treatment record, the Veteran’s blood pressure was noted to be 140/80, and in a November 2010 private treatment record, his blood pressure was noted to be 127/88. In a November 2010 VA examination report, the examiner, Dr. R.J., opined that the Veteran’s hypertension was not due to his diabetes mellitus type II “as there is no proteinuria.” In an April 2012 VA examination report regarding the Veteran’s diabetes mellitus type II, the examiner, R.M., MD, was asked whether the Veteran had any of the listed conditions and whether they are at least as likely as not due to diabetes mellitus. Dr. R.M. indicated that the Veteran’s erectile dysfunction was at least as likely as not due to his diabetes mellitus, but did not indicate this for hypertension. Dr. R.M. was also asked whether the Veteran’s diabetes mellitus at least as likely as not permanently aggravated any of the listed conditions (including hypertension), and he indicated that none of the Veteran’s conditions were so aggravated. In May 2015, the Veteran was provided a VA examination to determine the etiology of his hypertension. The examiner, S.Y., MD, indicated that she reviewed the Veteran’s claims file and noted that the date of the Veteran’s hypertension diagnosis was November 2004. In describing the history of the Veteran’s hypertension, Dr. S.Y. wrote, “Veteran states that during his active service, he was never diagnosed with hypertension nor had he been treated for high blood pressure issues, he did not have any symptoms related to high blood pressure in his active service. Based on the review of records he was separated from active duty in June of 2003, and in November of 2004 was the first time hypertension or high blood pressure readings were actually mentioned in his record from Dr. [T.M.] who was his primary care provider at the time. He was started on Altace initially when he was diagnosed with diabetes for kidney protection, and he was never told that he had either microalbuminuria or any renal impairment with high creatinine.” Dr. S.Y. also noted that about 3 years prior, “the veteran had a gastric bypass surgery losing about 100 pounds and since then he had a significant stabilization in his hemoglobin A1c and also his blood pressure levels.” Dr. S.Y. wrote that a “[d]etailed review of his service treatment records was done and there is no evidence of high blood pressure issues during his active duty or before November of 2004.” Ultimately, Dr. S.Y. provided three medical opinions. First, she opined that the “veteran’s hypertension is unlikely [to have] manifested itself within one year of separation in June 2003.” Dr. S.Y. reasoned that numerous STRs indicate normal blood pressures in the 120s over 70-80 range and there is no evidence that the Veteran was ever diagnosed with hypertension during his active service; the first mention of high blood pressure levels was in a November 2004 note from his primary care provider and he was not started on Altace until January 2005, which is not within one year of separation from active service. Second, Dr. S.Y. opined that the “veteran’s hypertension is unlikely to be caused by his service-connected diabetes mellitus.” She reasoned that “[i]t is clear that the veteran has not had any abnormal renal function tests or microalbuminuria and without any renal compromise secondary to diabetes, it is highly unlikely that the diabetes is etiologically related to hypertension.” She further explained that it is “very common for diabetes and hypertension to coexist as most of the risk factors like obesity and dietary factors can contribute to both of these conditions.” Third, Dr. S.Y. opined that the Veteran’s “hypertension is unlikely (is less than likely) to be aggravated by his service-connected diabetes.” She reasoned that there has to be an established baseline of pre-existing hypertension for this condition to be aggravated by the Veteran’s service-connected diabetes, and found that there is no evidence in the Veteran’s medical records that he had hypertension prior to his diagnosis of diabetes. As previously mentioned, in a September 2015 decision, the Board found the May 2015 VA medical opinion inadequate insofar as Dr. S.Y. failed to opine as to whether the Veteran’s hypertension was incurred in or related to active service and because she did not recognize that the Veteran’s hypertension need not pre-exist his diabetes mellitus type II to be aggravated by it. In an August 2015 Informal Hearing Presentation, the Veteran, through his representative, asserted that his hypertension is linked to his service-connected diabetes mellitus type II as he did not develop hypertension until after he developed diabetes. In an October 2015 VA addendum opinion provided by Dr. S.Y., she offered the following additional opinions. First, Dr. S.Y. opined that “[i]t is less likely (unlikely) that the veteran’s hypertension was incurred in or related to active duty service.” She reasoned that “upon thorough review of his service treatment records, there is no indication that the veteran has ever been diagnosed with hypertension or has been treated for hypertension during his active service.” Second, Dr. S.Y. opined that the Veteran’s hypertension “was less likely or (unlikely) caused by or chronically aggravated by his service-connected diabetes mellitus type 2.” As to the “caused by” prong, she reasoned that the Veteran’s hypertension is unlikely to be caused by his diabetes “as he does not have any evidence of proteinuria to suggest that his diabetes could be the cause of his hypertension and this has also been noted in Dr. [R.J.’s] opinion from his first compensation and pension examination in November 2009 which is confirmed by his current laboratory testing i.e. there is no evidence of microalbuminuria on sequential laboratory testing for this condition.” As to the aggravation prong, Dr. S.Y. reasoned that since the Veteran’s diabetes was diagnosed prior to his hypertension, there is no basis upon which to conclude that his hypertension was aggravated by his diabetes. Dr. S.Y. further explained that based on a review of recent medical records and laboratory testing, “there is no evidence of any aggravation in fact to the contrary, the veteran’s blood pressure has been improved significantly since his weight loss as well as his diabetes has shown improvement with better hemoglobin A1C readings.” Based on the forgoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran had symptoms of elevated blood pressure in service. While the Veteran’s STRs are silent as to any complaints, treatments, or diagnoses of hypertension, there were numerous elevated blood pressure readings in STRs dated January 1990 through January 2003. See STRs dated January 1990 (BP: 140/80), March 1990 (BP: 130/66), January 1991 (BP: 144/80), May 1991 (BP: 140/90), March 2002 (BP: 157/86), May 2002 (BP: 132/66), June 2002 (BP: 138/82), July 2002 (BP: 140/78), January 2003 (BP: 143/80). In a November 2004 private treatment record, the Veteran was diagnosed with hypertension, and his provider, Dr. T.M., reported that the Veteran had three “significantly elevated” readings that day – 150/96, 160/100, and 158/108. At a November 2004 follow up appointment, the Veteran’s blood pressure was improved, but still found to be elevated at 140/92. The Board notes that these blood pressure readings, deemed to be “elevated” by the Veteran’s treating physician, are comparable to some of the readings obtained during the Veteran’s service, mentioned above. As such, an in-service event is established. The Board acknowledges that in a November 1999 letter, P.H., MD, wrote that the Veteran’s “mother and father both have high blood pressure and the [Veteran’s] father has diabetes, although the [Veteran] has had no manifestation of either disease,” and that upon testing, he found no evidence of cardiac disease in the Veteran. However, there is no indication as to whether Dr. P.H. reviewed the STRs relating to the Veteran’s prior period of active duty (from July 1987 to July 1991), and his conclusion does not apply the Veteran’s two subsequent periods of active service (from September 2001 to March 2002, and from April 2002 to June 2003). As it is unclear whether Dr. P.H.’s opinion considered all relevant evidence regarding the Veteran’s elevated blood pressure symptoms in service, and it was rendered prior to two periods of active service, the Board affords his opinion little to no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Additionally, the Board acknowledges Dr. S.Y.’s notations in the May 2015 VA examination report that a “[d]etailed review of his service treatment records was done and there is no evidence of high blood pressure issues during his active duty or before November of 2004” and that numerous STRs indicate normal blood pressures in the 120s over 70-80 range. The Board notes that in its March 2015 Remand directives, the Board specifically directed the examiner’s attention to “[b]lood pressure readings trending higher” in STRs dated December 2001, July 2002, and January 2003. To the extent Dr. S.Y. misstated the Veteran’s history of elevated blood pressure readings in service, her opinion is based upon an inaccurate factual premise and is of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Moreover, the Board finds it highly significant that the Veteran was diagnosed with hypertension only 1 year and 5 months after separation from service; namely, only 5 months after the presumptive period ended. See 38 C.F.R. § 3.307(a)(3). The Veteran separated from active service in June 2003 and was diagnosed with hypertension in November 2004. Proof of symptoms in service that are later diagnosed may be evidence of service “incurrence.” See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a), (d); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the finding that the Veteran had elevated blood pressure readings during service, together with the Veteran’s diagnosis of hypertension soon after service, is supportive of the claim overall because it tends to show that the same elevated blood pressure readings that began in service were the basis for the later diagnosis of hypertension in 2004. See Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993). For the sake of completeness, the Board recognizes the October 2015 VA addendum opinion in which Dr. S.Y. opined that “[i]t is less likely (unlikely) that the veteran’s hypertension was incurred in or related to active duty service,” reasoning that “upon thorough review of his service treatment records, there is no indication that the veteran has ever been diagnosed with hypertension or has been treated for hypertension during his active service.” Nonetheless, the lack of treatment for or diagnosis of hypertension in service does not negate the Veteran’s claim for service connection. See 38 C.F.R. § 3.303(d). This opinion is not only inadequate, but of no probative value. Accordingly, based on the medical evidence of a current hypertension diagnosis, elevated blood pressure readings in service, and a diagnosis of hypertension only 1 year and 5 months after separation from service, or 5 months after the presumptive period ended, the Board finds, with resolution of any doubt in the Veteran’s favor, that his hypertension had its onset during active service. The appeal is therefore granted. Having granted service connection on a direct basis, the Board need not address the Veteran’s alternative theories of entitlement. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.