Citation Nr: 20023892 Decision Date: 04/07/20 Archive Date: 04/07/20 DOCKET NO. 14-29 753 DATE: April 7, 2020 ORDER Entitlement to service connection for hypertension is denied. FINDING OF FACT Hypertension was not shown in service or within the presumptive period following service; the Veteran did not display continuity of symptomatology since service and hypertension has not otherwise been shown to be related to service. CONCLUSION OF LAW The criteria to establish service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1141, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from December 1965 to November 1967. This appeal arises from an April 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Travel Board hearing in October 2017. A transcript of the testimony offered at the hearing has been associated with the record. In an August 2008 rating decision, the RO denied the Veteran's claim for service connection of hypertension on the basis that the evidence did not indicate that hypertension was incurred in, or related to, service. At the time of the determination, the Veteran's service and VA treatment records were of record. The Veteran appealed that determination by filing a Notice of Disagreement (NOD), and the RO issued a Statement of the Case (SOC) on the matter; however, the Veteran did not file a timely Substantive Appeal (VA Form 9), and the rating became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). The RO interpreted the untimely Substantive Appeal (VA Form 9) as an application to reopen the claim for service connection of hypertension. In a March 2010 rating decision, the RO denied the application to reopen. The Veteran did not appeal that determination, or submit new and material evidence within one year of the denial. Accordingly, it became final. Id. In a May 2018 decision, the Board determined that since the March 2010 rating decision, new and material evidence pertinent to the claim has been received, and reopened the Veteran’s claim to service connection for hypertension. The Board also remanded the Veteran’s claim for additional development. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Some chronic diseases may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Finally, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). 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 whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Board has a heightened duty to assist and explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where service records are missing or presumed destroyed, as here. The threshold for allowance of a claim is not lowered; and these is no presumption, either in favor or against the claimant. See Washington v. Nicholson, 19 Vet. App. 362 (2005); O’Hare v, Derwinski, 1 Vet. App. 365 (1991). Entitlement to service connection for hypertension The Veteran claims that his hypertension was incurred in service. A review of the Veteran’s service treatment records (STRs) shows that his blood pressure in September 1965 at the time of pre-induction into the army was 120/70 and that his blood pressure at the time of separation in June 1967 was 132/80. The Veteran testified before the Board in October 2017 that within a month or so following separation he was given a work physical in order to resume the work he did prior to entering service. The physical indicated high blood pressure readings, and possibly pre-hypertension. The Veteran testified that he was not put on any medication. Rather, he was advised to watch his diet and exercise. The Board notes that the Veteran tried to obtain these records but was unsuccessful. Therefore, the Veteran’s records from General Motors showing his blood pressure readings are not in his claims file. The Veteran said that he has been going to the doctor ever since for high blood pressure. The Veteran also testified that he started getting treatment for hypertension in the 1970s. The Veteran’s wife testified that her husband had been receiving medication and treatment for hypertension since she met him in the 1970s. The Board finds the reporting of both the Veteran and his wife credible, especially since their assertions about the Veteran having elevated blood pressure or pre-hypertension is supported by medical evidence in the form of the Veteran’s blood pressure readings at separation. On January 31, 2014, the Veteran’s blood pressure reading was 135/86. During a June 2014 eye consult, the examiner indicated that the Veteran had a history of atrial fibrillation but not history of hypertension. The Veteran’s blood pressure reading was 138/88 on July 27, 2015. On October 24, 2017, the Veteran’s blood pressure readings were 138/88 and 162/89, and the Veteran’s medication regimen was adjusted through lisinopril to improve blood pressure control. During the same examination, the examiner recommended that the Veteran start monitoring his blood pressure at home and to keep a log of the readings. The examiner also ordered a cuff for the Veteran to be able to monitor his blood pressure at home. During a February 2017 primary care consult, the examiner noted that the Veteran has a history of hypertension and was taking 120 mg of Verapamil daily. In a February 20, 2018 outreach note, the Veteran reported that he checks his blood pressure at home, and states it typically averages around 135 systolic and 80 diastolic. The Veteran’s last recorded blood pressure reading was 140/82 on February 20, 2018. A repeat reading showed a blood pressure level of 136/78. The Veteran was afforded a VA examination in April 2019. The examiner noted that the Veteran has had a diagnosis and has been treated for hypertension since October 24, 2017. The examiner also noted that the Veteran was taking ongoing medication for hypertension, namely 10 mg of Lisinopril a day. The examiner reported that the Veteran did not have a history of a diastolic blood pressure elevation to predominately 100 or more. The examiner took three blood pressure readings from the Veteran on the day of the examination. The Veteran had the following blood pressure readings: 170/120, 172/114, 144/110. The average blood pressure reading was 162/115. The examiner identified that the Veteran had a marked elevation of blood pressure, and that he was unsure whether the Veteran was taking his medications. The VA examiner opined that the Veteran’s hypertension was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that when the Veteran entered service in September 1965 his blood pressure was 120/70. The examiner also noted that the Veteran’s STRs are silent for elevated blood pressure, and that his blood pressure readings on his separation examination was 132/80. There was no evidence of hypertension before or immediately after his time in the service. Records from Tazewell CBOC, Salem VAMC and Mountain Home VAMC show blood pressure readings that range from 118/86 on February 11, 2009 to 136/78 on February 23, 2017. On October 24, 2017 the Veteran’s blood pressure was 162/89. He was started on Lisinopril 10 mg daily at this time. The Veteran’s blood pressure had ranged from 107/75 on February 9, 2017 to 140/82 on February 20, 2018 on medication until the day of examination. The examiner also noted that the Veteran was diagnosed with Chronic atrial fibrillation in 2011 and was started on verapamil 120 mg daily on June 16, 2014 for rate control. While verapamil is also used for hypertension, the examiner noted that there is no suggestion in the Veteran’s records that this medication was used for blood pressure conditions. The examiner also stated that there is no indication in the Veteran’s records of prehypertension. In the Veteran’s hearing testimony, he related that he was told to have his blood pressure checked because it was elevated. Even if he was told this, and he followed directions and continued to have his blood pressure evaluated, it did not require treatment for a diagnosis of hypertension until the diagnosis was established in October 24, 2017. There was no diagnosis of prehypertension made at the time of these early readings while the Veteran was in service by the criteria available at the time of his discharge from the service. The examiner noted that from the time the Veteran was in service until 2017, hypertension was defined as blood pressure above 140 - 160 over 90. Since 2018, hypertension is defined as blood pressure above 120/80. Based on this information, the examiner opined that a nexus between the Veteran’s current hypertension diagnosis and his time in service has not been met. The Veteran is not entitled to service connection for hypertension on a presumptive basis because it did not manifest to a compensable level within one year of separation from service. Although the Veteran’s separation examination reflects an elevated blood pressure reading and he reported that he had high blood pressure during a work related physical about one month after his discharge from service, there is no diagnosis of hypertension or empirical evidence of blood pressure readings for diastolic pressure predominately 100 or more, or systolic pressure predominantly 160 or more during the one year after the Veteran’s discharge from service. In fact, there is no medical evidence that the Veteran sought treatment for hypertension or high blood pressure within one year of service. Also, the earliest blood pressure reading recorded for the Veteran dates to February 2009. Also, while lay evidence can be competent and sufficient to establish a diagnosis, it can only do so if the lay person is reporting a contemporaneous medical diagnosis. Here, there is no evidence of a contemporaneous diagnosis of hypertension within one year of service. Jandreau, 492 F.3d at 1377. Rather, the earliest evidence of the Veteran’s diagnosis of hypertension dates to October 2017. While the Veteran and his wife provided lay statements that the Veteran had hypertension and sought treatment for this condition as early as the 1970s, their lay statements do not constitute competent evidence to confirm the Veteran’s diagnosis of or treatment for hypertension between his discharge from service in November 1967 and his diagnosis of hypertension in October 2017. Jandreau, 492 F.3d at 1377. The evidence of record also does not support service connection on a direct basis. The Veteran’s blood pressure reading during the separation examination shows a blood pressure reading of 132/80. While the Veteran’s blood pressure reading was high, it did not meet the criteria for a compensable rating for hypertension according to VA standards for that period. As indicated by the April 2019 VA examiner, from the time the Veteran was in service until 2017, hypertension was defined as blood pressure above 140 - 160 over 90. Also, there was no abnormality of the heart or vascular system shown on the separation. Moreover, there is no evidence of a diagnosis of hypertension shown in-service. Therefore, the Veteran’s assertion that he had hypertension during service is not supported by the objective evidence. As there is no diagnosis of hypertension in service, and a negative medical opinion, the third prong of service connection cannot be satisfied on a direct basis. Also, there is no evidence that the April 2019 examiner was not competent or credible, and as the opinion was based on the medical evidence and physician evaluation of the Veteran, the Board finds it is entitled to significant probative weight as to the etiology of the Veteran’s hypertensive vascular disease. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The evidence of record also does not support a finding of continuity of symptoms post-service for hypertension. Although there is evidence that the Veteran had an elevated blood pressure at the time of the separation examination, there is no empirical evidence that the Veteran continued to have high blood pressure from November 1967. The first notation of high blood pressure post service was in February 2009 and the Veteran was only diagnosed with hypertension in October 2017. There is also no evidence that the Veteran’s blood pressure was monitored following his discharge from service until at least February 2009. As noted above, the lay statements from the Veteran and his wife do not constitute probative evidence of high blood pressure between November 1967 nad February 2009. The Veteran and his wife’s lay statements about the onset of his hypertension are not probative because they are not accompanied by contemporaneous empirical evidence. Therefore, service connection on the basis of continuity of symptomatology is also not warranted. Accordingly, as there is no competent and credible evidence showing a continuity of symptoms between the Veteran’s discharge from service and his diagnosis of hypertension, service connection on a direct basis under 38 C.F.R. §§ 3.303 is unwarranted. Having reviewed the record, the Board finds that the competent and probative evidence of record is against finding a nexus between the Veteran’s current disability and his military service. (Continued on next page.) In summary, the Board finds the preponderance of the evidence is against finding that the Veteran’s hypertensive vascular disease is related to his active service. In making this determination, the Board has considered the provisions of 38 U.S.C. § 5107 (b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran’s claim. Therefore, the Veteran’s claim for service connection for hypertensive vascular disease must be denied. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. White, 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.