Citation Nr: 20028044 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 06-22 545 DATE: April 22, 2020 ORDER Entitlement to service connection for hypertension is denied. REMANDED Entitlement to service connection for a heart disability is remanded. FINDING OF FACT The Veteran’s hypertension did not manifest in-service, or within one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from September 1968 to September 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2005 (heart disability) and May 2013 (hypertension) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in April 2010, the Board denied the claim for entitlement to service connection for a heart disability. The Veteran appealed this decision to the Court of Appeal for Veterans Claims (Court). In January 2012, the Court issued a Memorandum Decision vacating the April 2010 Board decision and remanded the matter of entitlement to service connection for a heart disability for action consistent with the Court’s decision. The Court further directed the Board to determine whether a claim for service connection for hypertension had been raised by the record and whether a medical nexus opinion was warranted. In July 2012, the Board remanded the issue of entitlement to service connection for a heart disability and referred to the RO the issue of entitlement to service connection for hypertension. During remand status, the Veteran perfected an appeal of a May 2013 rating decision that denied service connection for hypertension. As such, the issue has been added to the appeal before the Board. In April 2016, the Veteran testified at a hearing and a transcript is of record. In September 2016, the Board remanded the issues on appeal for further evidentiary development. In May 2017, the Board requested an outside medical opinion which was received in June 2017. Thereafter, the Board requested clarifying medical opinions in January and June 2018, which were received in February and August 2018, respectively. In March 2019, the Board remanded the issues on appeal in order to obtain records from Irving Medical Center, Minden Memorial Hospital, a hospital in Baylor, Texas, Parkland Hospital, and VA treatment records from NTXHCS – Dallas VAMC. Pursuant to the March 2019 remand order, the VA requested that the Veteran complete and return VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA) and VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs (VA). See October 2019 Other. The Veteran did not respond to the Board’s request. The Board finds that the RO substantially complied with the March 2019 remand order. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting the duty to assist is a two-way street that requires a claimant’s active participation in a claim for VA benefits). Service Connection Generally, to establish service connection 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). 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 be established for a current disability on the basis of a presumption that certain chronic diseases, to include cardiovascular-renal disease, to include hypertension, that manifested to a compensable degree within a certain time after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for hypertension is denied. At the outset, the Board notes that the Veteran has a diagnosis of hypertension. See October 2016 C&P Exam. As such, the first element of service connection is met. Concerning the second element, a review of the service treatment records shows that the Veteran had normal heart and vascular system with no palpitation or pounding heart or high blood pressure in the September 1968 entrance examination and July 1970 separation examination. See February 2000 STR-Medical. Specifically, the Veteran had a blood pressure reading of 130/76 in the September 1968 entrance examination and 120/80 in the July 1970 separation examination. As such, the Board finds that there is no hypertension-related in-service event or disease. The post service medical records show that the Veteran was afforded VA examinations in October 2016 with addendum opinions in June 2017, February 2018, and February 2019 from the Veterans Health Administration (VHA). In the October 2016 examination, the examiner diagnosed the Veteran with hypertension and opined that it is less likely as not that the Veteran had hypertension in service. The examiner explained that the blood pressure readings of 130/76 in the entrance examination and 120/80 in the separation examination are both very normal and are not clinical evidence of pre-hypertension. Moreover, the Veteran conceded that he was diagnosed with hypertension around 1994 or 1995, about 25 years after service. As such, the examiner opined that it is less likely as not that the Veteran had hypertension in service. In June 2017, a VHA expert, Dr. T.N., diagnosed the Veteran with hypertension and opined that it is a less likely than not probability that his heart disease is related to military service as the Veteran had no heart disease in service and his hypertension was diagnosed 25 years after leaving service. In February 2018, Dr. T.N. clarified his June 2017 medical opinion as to the Veteran’s claim that he had pre-hypertension in service. Dr. T.N. reviewed the Mayo Clinic patient information system discussing pre-hypertension as well as the JNC7 guidelines for diagnosis of hypertension. Per the JNC guidelines, an average of at least two readings are required for a diagnosis of hypertension or pre-hypertension. These readings need to be done sitting with feet on the floor, at least 30 minutes after exercise, use of caffeine or tobacco. Dr. T.N. stated that although it can be conceded that proper technique was used in service there is no assurance that the Veteran was rested and had not used a stimulant prior to the reading. Additionally, based on the guidelines, the Veteran may qualify for pre-hypertension, but one isolated reading should not be used to make a diagnosis of hypertension or pre-hypertension. Based on the foregoing, Dr. T.N. wrote that he cannot state with greater than 50 percent probability that the two, isolated, and one-time readings qualify for a diagnosis of pre-hypertension. Moreover, the Veteran was not diagnosed with hypertension until many years after leaving service. Then, in August 2018, Dr. T.N. again opined that it is less likely than not probability that the Veteran’s hypertension is related to military service. Dr. T.N. explained that according to the Seventh Report of the Joint National Committee on the Prevention, Detection, Evaluation and Treatment of Hypertension, a formal diagnosis of hypertension requires accurate office measurement with an average of at least two separate readings. Here, the Veteran has a one-time reading of 130 systolic at the entrance examination which would not qualify for pre-hypertension and a reading of 120 at the separation examination which is essentially normal. As such, a one-time isolated reading on an entrance examination is not adequate to make a diagnosis of pre-hypertension. Furthermore, the Veteran was not diagnosed with hypertension until 25 years after leaving service. The Board affords probative value to the October 2016 examiner’s and Dr. T.N.’s assessments as their assessments are welly supported by, and is consistent with, the most probative evidence of record. The most probative evidence of record reflects that although the Veteran had a one-time reading of 130 systolic reading in the entrance examination, this one-time reading is insufficient to render a diagnosis of pre-hypertension or hypertension. Moreover, the records indicate, and the Veteran even conceded, that his hypertension manifested in 1995, about 25 years after service. As for presumptive service connection based on chronic disease, the Board finds the preponderance of the evidence does not support a finding that the Veteran’s hypertension manifested to a compensable level in the first post-service year. 38 C.F.R. § 3.309(a). A review of post-service treatment records shows that the Veteran was not diagnosed with a hypertension until 1995, about 25 years after service. See July 2001 Medical Treatment Record – Non-Government Facility. Further, even the Veteran conceded that he was treated for hypertension in 1995. See October 2016 C&P Exam. The Board notes that the absence of evidence does not automatically constitute substantive negative evidence. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). In order to find that silence in the record contradicts lay testimony, the Board “must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation.” Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). It must be considered whether there is evidence as to the severity of symptoms that would have made it “reasonable to expect” that at that time he would have reported symptoms during treatment. See Fountain v. McDonald, 27 Vet. App. 258, 272-74 (2015). If so, the absence of complaints during treatment may provide affirmative evidence of absence. AZ v. Shinseki, 731 F.3d 1303, 1315-16, 1317-18, n.13 (Fed. Cir. 2013). The Board acknowledges the Veteran’s statements that his hypertension started in service, but affords it low probative value. The Board finds it reasonable to assume that if he had hypertension on a continual basis since service separation, the Veteran would have sought medical treatment prior to 1995, about 25 years after service. This absence of evidence of hypertension until many years after the Veteran’s separation from service is more probative than his assertion that he had such symptoms on a continual basis since his separation. See Curry v. Brown, 7 Vet. App. 59 (1994) (contemporaneous evidence can have greater probative value than inconsistent testimony provided by the claimant at a later date). In sum, the criteria for service connection for hypertension have not been met. The evidence does not show that hypertension is directly related to an in-service event or injury. Accordingly, service connection for hypertension must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REMANDED 1. Entitlement to service connection for a heart disability is remanded. Based on a review of the records, the Board finds that a VA examination is required as the medical records show new diagnoses of coronary artery disease and acute coronary syndrome. See October 2019 Medical Treatment Record – Government Facility; and October 2019 Medical Treatment Record – Government Facility. A review of the records shows that the Veteran was afforded a VA examination in November 2009, April 2013, and October 2016 with a VHA addendum opinion in June 2017. In the November 2009 examination, the examiner diagnosed the Veteran with no specific heart disability except for hypertension. In April 2013, the examiner determined that the Veteran did not have a diagnosable heart condition. In the October 2016 examination, the examiner diagnosed the Veteran with heart murmur and septal defect. The examiner noted that although a 2004 echocardiogram revealed heart murmur, the examiner was unable to hear one on examination. Further, although the Veteran reported that he has septal defect, the echocardiogram studies in the 1990s and 2004 showed left ventricular hypertrophy (LVH) but no septal defects. As such, the examiner determined that the Veteran has hypertensive heart disease with cardiomegaly and LVH but no evidence of a heart murmur. Accordingly, based on no audible murmur in the service treatment records and no documentation of any heart issues, it is less likely as not that the current heart condition is related to military service. In June 2017, a VHA expert, Dr. T.N. diagnosed the Veteran with hypertensive heart disease with concentric LVH. Dr. T.N. noted that although a murmur has been noted intermittently the Veteran’s echocardiogram does not show evidence of a significant valvular disease or a septal defect or a so called functional murmur which would be the cause of a murmur. Dr. T.N. explained that a murmur can be a subjective finding depending on the skills of an examiner, but that the findings from an echocardiogram is the gold standard for deciding if there is a structural cause for a murmur. As such, Dr. T.N. concluded that there was no evidence of a congenital heart disease on echocardiogram. Since the June 2017 addendum opinion, in June 2018 the Veteran was diagnosed with coronary artery disease and in January 2019 the Veteran was diagnosed with acute coronary syndrome. As there is a possibility of a change in the Veteran’s heart condition, the Board finds that a VA examination is required. The matter is REMANDED for the following action: Obtain an addendum to the June 2017 VA opinion in connection with his claim for a heart disability. Furnish the Veteran’s claims file, including a copy of this remand, to the examiner. The examiner should specifically state that the entire claims file has been reviewed, including this remand order. The Veteran should be scheduled for an examination if determined necessary. In June 2018 the Veteran was diagnosed with coronary artery disease and in January 2019 the Veteran was diagnosed with acute coronary syndrome. The examiner must determine if it is at least as likely as not (a fifty percent probability or greater) that any if either diagnosed disability had its onset in service or is otherwise related to service. (Continued on the next page)   A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Noh, 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.