Citation Nr: 20035233 Decision Date: 05/20/20 Archive Date: 05/20/20 DOCKET NO. 04-33 245 DATE: May 20, 2020 ORDER Entitlement to service connection for hypertension is denied. FINDING OF FACT Clear and convincing evidence demonstrates that the Veteran’s hypertension was not made permanently worse by his active duty service. CONCLUSION OF LAW The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1952 to November 1954. The Veteran and his spouse testified before another Veterans Law Judge (VLJ) at a travel Board hearing in May 2005. That transcript is of record; however, the VLJ that conducted the hearing departed the Board thereafter. The Veteran testified a second time before the undersigned VLJ at a teleconference Board hearing in November 2010. That transcript is also of record. The Board of Veterans’ Appeals (Board) denied the Veteran’s claim in April 2015. The Court of Appeals for Veterans Claims (Court) vacated and remanded in part of that decision relating to the adequacy of the medical evidence. The Board obtained a medical opinion from a VA Healthcare provider in March 2017. The Board again denied the Veteran’s claim in August 2017. In April 2018, the Court entered a Joint Motion for Partial Remand (JMR) that vacated and remanded the portion of the Board’s decision relating to direct service connection for hypertension. The JMR agreed that the finding that the Veteran’s hypertension clearly and unmistakably predated service was “not at issue.” However, the JMR found that the March 2017 opinion did not adequately address whether the Veteran’s hypertension was permanently worsened by service. The Board obtained an addendum opinion in August 2019; however, because the Veteran submitted additional evidence without waiving his right to Regional Office review, the Board remanded the claim to the Regional Office in October 2019. A supplemental statement of the case was issued in March 2020 again denying the claim, and the case was returned to the Board for adjudication. Because the JMR specifically vacated and remanded the Veteran’s hypertension claim only on a direct service connection basis, the Veteran’s previous claim for service connection secondary to posttraumatic stress disorder is not on appeal. Likewise, because the JMR specifically stated that it was not disturbing the Board’s finding that hypertension preexisted service, direct service connection is only being considered as to aggravation and not as to the incurrence of the Veteran’s hypertension. The Veteran wrote in April 2020 in response to the supplemental statement of the case. Remand for initial consideration of this letter is not necessary, however, because the letter provided only argument in response to the supplemental statement of the case. This argument included the facts that the Veteran believed the SSOC reported incorrectly, but it did not purport to introduce new evidence that needs to be considered in the first instance by the Agency of Original Jurisdiction At the end of the Veteran’s April 2020 response, he stated that he wanted to opt-in to the AMA process. He did not include, however, the required Form 10182 necessary to start an AMA appeal. Absent the filing of the form, his case remains in the legacy system and will be adjudicated as such. 1. Entitlement to service connection for hypertension on a direct basis The Veteran has made several recurring arguments for why he should be entitled to service connection for hypertension. First and foremost has been his argument that he had hypertension prior to being drafted into service and that he should not have been drafted. The Board has accepted that the Veteran’s hypertension preexisted service, but neither the Board nor VA has the power to award compensation based on being drafted improperly. Although the Veteran’s story is sympathetic, legally it is not what service-connected compensation was made to redress. As to the Veteran’s argument that his hypertension preexisted service, neither VA nor the Board has the power to award compensation for a preexisting condition or having to go through service with a preexisting condition (absent aggravation). Compensation may be awarded if the Veteran initially developed the condition in service, or developed it due to service, but not because he served with that condition. The Veteran’s other argument has been that service aggravated his already existing hypertension. The Board and VA can award compensation if a preexisting condition was permanently worsened by service. As will explained in more detail below, the Board concludes that the Veteran’s service did not permanently worsen his hypertension. That is to say, the Veteran’s hypertension after service was just as bad as it would have been had the Veteran not been drafted. Before addressing the merits of the arguments, the Board will first turn to whether the May 2019 VHA letter was adequate and satisfied the April 2018 JMR. Adequacy of the Medical Opinion The April 2018 JMR required the Board to obtain a new medical opinion so that the doctor could address whether the Veteran’s lay reported symptoms, to the extent credible, would change the doctor’s opinion on aggravation. In May 2019, the doctor provided an addendum opinion. The doctor noted the Veteran’s reported symptoms of headaches, hearing loss, hand shaking, blurred vision, palpitations, jitteriness, and confusion, but dismissed them as being unrelated to the question of aggravation of the Veteran’s hypertension. Rather, the doctor explained that hypertension was asymptomatic except in cases of hypertensive emergency, indicated by signs of acute, ongoing target organ damage. After describing what target organ damage included, the doctor noted that the Veteran did not have signs or symptoms of damage to these organs in his in-service testing or examinations. As an example, the doctor noted that had hypertension caused kidney damage, elevated protein readings in the urine would be expected, but such levels were not noted in the service record urine test. The Board finds that this medical report is adequate and addresses the concern made in the JMR. The doctor reported that the symptoms identified in the JMR would not have changed his opinion because hypertension was asymptomatic except in cases of targeted organ damage, which the Veteran did not show signs of in service. The Board acknowledges that the doctor framed his opinion as one that hypertension was “less likely as not permanently aggravated by service” instead of using the proper “clear and unmistakable evidence” standard. This is not fatal to the opinion, however, because the examiner is not the one that makes the ultimate determination on aggravation. The doctor’s rationale provides the evidence and opinion necessary for the determination on aggravation and it is the Board’s responsibility to use that rationale to make the ultimate determination. The Veteran responded to the new opinion letter in his own letter received in August 2019. The Veteran first took issue with the instruction that the doctor was to “assume” hypertension pre-existed service. According to the Veteran there was no “assumption” because he had hypertension before service. For purposes of the medical opinion, this is a distinction without a difference. By instructing the doctor to assume hypertension, he was being instructed not to reevaluate or contradict the Board’s earlier finding that hypertension preexisted service. This is common language used to instruct doctors and was not intended to suggest that the Veteran did not have hypertension prior to service. Indeed, the Board has repeatedly found that the Veteran did have hypertension prior to service, and it is the Board’s responsibility, not the examiner’s, to come to that ultimate conclusion. The Veteran then disagreed with what he characterized as the dismissal of his symptoms. The doctor, however, did not dismiss the symptoms or question whether the Veteran had them. What the doctor said was that the symptoms were not relevant to aggravation because (1) hypertension was generally asymptomatic and (2) aggravation would be shown by acute damage to target organs, which could not be shown by the reported symptoms. The Veteran’s disagreement with the doctor’s conclusions does not make the opinion inadequate. The Veteran also objected that the opinion was not based on a physical examination, and it did not consider the Veteran’s current or past medications. This objection also does not render the opinion inadequate because the doctor was not expected to opine on the current severity of the Veteran’s hypertension. The opinion was limited to events that happened during and immediately after service, and the Veteran had already testified that he wasn’t on medication during or immediately after service. Finally, the Veteran stated that his other doctors identified his hypertension as a contributing factor to several later problems. But those additional problems only come into play if the Veteran is first service connected. The opinion here focused on the service-connection aspect and these other, later developed disabilities do not render the opinion inadequate. Analysis of the Law Under the relevant laws and regulations, 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, 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Veterans entering service are presumed to be in sound condition. This is known as the presumption of soundness. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). The Board already found that the presumption of soundness existed, but that clear and unmistakable evidence established that the Veteran’s hypertension preexisted service. The JMR explicitly noted that this finding was not being set aside and it remains the law of the case. Even when a disorder is found to preexist service, the Board must consider whether service aggravated, that is permanently worsened, the preexisting condition. In cases where the presumption of soundness attaches, aggravation is also presumed unless rebutted by clear and unmistakable evidence that the disorder also was not aggravated in service. 38 C.F.R. § 3.304(b); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence “‘cannot be misinterpreted and misunderstood, i.e., it is undebatable.’” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The government may show a lack of aggravation by establishing by clear and unmistakable evidence “that there was no increase in disability during service or that any “increase in disability [was] due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding “that the record contains insufficient evidence of aggravation.” Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). Due regard must be given to combat duty and the development of symptomatic manifestations of a preexisting disease or injury during or proximately following action with the enemy as this will establish aggravation of a disability. 38 C.F.R. § 3.306(b)(2). The Board begins its inquiry by considering the status of the Veteran’s hypertension prior to service. The Veteran testified at the November 2010 Board hearing that measurements of his blood pressure measurements immediately prior to service were 190/110 and 200/105. In his January 2015 written statement, the Veteran stated that his blood pressure was 180/100 at induction. His induction physical reported a blood pressure of 148/78, included a note that he was hospitalized at Fort Hamilton in December 1951 for hypertension, but reported that he was found negative in January 1952. The Board has already found that the induction physical was an inaccurate representation of the Veteran’s predominate blood pressure at the time of induction, as demonstrated by the Veteran’s hospitalization for hypertension and his reported much higher blood pressures. The Board therefore finds that just prior to service, the Veteran had blood pressure in the 180 to 200 over 100 to 110 range. The Veteran’s separation physical weighs against aggravation. At that physical, his blood pressure was measured to be 160/70, which the Veteran confirmed at his 2010 hearing. This reading was significantly less than the readings the Veteran reported prior to service, which is strong evidence that his hypertension was not made permanently worse by service. See Verdon v. Brown, 8 Vet. App. 529 (1996). The Veteran testified that during service he was not in a position to complain about high blood pressure because there were no doctors on the battlefield. He stated that he was shaky, jittery, and confused after fire missions and it was not helping being in a combat situation. But the Veteran also clearly stated that he did not know if these symptoms were due to hypertension. The May 2019 VHA doctor found that these symptoms were unrelated to hypertension because hypertension is asymptomatic until it causes targeted organ damage. The Board weighs the VHA doctor’s opinion here more strongly because the Veteran was not confident about the relation to hypertension, whereas the doctor has medical training and experience with the signs and symptoms of hypertension. Moreover, even if the Veteran experienced increased blood pressure during combat, these constituted temporary flare ups of the symptoms rather than a permanent worsening and are not considered aggravation. See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The question is not whether the Veteran’s blood pressure increased during combat, but rather whether the overall impact of service rendered the Veteran’s hypertension permanently worse than it would have been absent service. The May 2019 VHA letter weighs against aggravation. The doctor explained that a permanent worsening of hypertensive disease would have resulted in targeted organ damage, but the Veteran’s separation examination noted normal kidney testing and cleared the Veteran of any other permanent organ damage. In addition, the Veteran was examined shortly after service in March 1955. The Veteran was not reported to be on any blood pressure medication at the time and his blood pressure reading was 130/90. Although this blood pressure reading did indicate hypertension, it was not as high a reading as the Veteran’s pre-induction readings. This further weighs against a permanent worsening during the Veteran’s time in service because his hypertension was not worse than the pre-induction numbers. The Veteran was hospitalized in July 1955 (unrelated to hypertension) and those records indicated a blood pressure of 144/84, which is further evidence against the Veteran’s hypertension being permanently worsened by service for the same reason. The Veteran testified in May 2005 that at the time in 1955 he was not on blood pressure medication and that he did not go on blood pressure medication until he saw his doctor a few years later in 1958 or 1959. The Board concludes that the most competent and credible evidence illustrates in a clear and unmistakable fashion that the Veteran had hypertension prior to service but that service did not permanently worsen the Veteran’s hypertension beyond its natural course. The stress of combat may have increased his blood pressure temporarily, but as demonstrated by the reduced blood pressure readings at discharge and in the following year, his blood pressure was not permanently worsened beyond what it was prior to induction. In addition, the testing and examinations at and after discharge, such as the urinalysis for kidney functioning and the medical examinations, demonstrated that the Veteran had not suffered targeted organ damage during his period of service, which would have been indicative of a permanent worsening. Because the Veteran’s hypertension preexisted service and was not aggravated (i.e. permanently worsened) by service, service connection must be denied. VA has provided additional opinions regarding the Veteran’s hypertension, including VA examinations and VHA letters. None of these have been favorable to the Veteran’s claims and need not be discussed further as they are otherwise cumulative of the evidence already discussed. The Veteran’s most recent April 2020 arguments do not change the balance of the evidence. He argued that the SSOC misquoted him as saying that his hypertension did-not preexist service. The SSOC is not binding on the Board, but the Board’s previous findings are binding on the Agency of Original Jurisdiction. The Board has already explained that it was previously established in earlier Board decisions that the Veteran’s hypertension pre-existed service. This fact, however, meant that hypertension could not have been incurred during service, and does not benefit the Veteran. The Veteran also again noted that he should not have been drafted with hypertension. He explained that his mother, brother and father all had hypertension, and so did he prior to service. The Board reiterates, however, that neither it nor VA have the power to compensate the Veteran for being drafted into military services, even if the Veteran should not have been drafted. The Veteran’s preexisting hypertension and his family history weigh against service connection because they indicated that service was not itself the cause or a permanently worsening factor of the Veteran’s disability. The Veteran has also submitted numerous other statements and buddy statements over the years. These statements have been considered, but the Veteran’s message has been consistent and these statements match the arguments addressed herein: namely that the Veteran had hypertension before service, that he should not have been inducted into service, and that his hypertension is now more severe than it was those decades ago. As was explained before, these do not address the critical issue of whether the Veteran’s hypertension was permanently worsened beyond its normal progression during or due to service and not the normal progression of the disease. As to the Veteran’s own conclusion that service aggravated his hypertension, the conclusion is not considered competent. This is not a case in which the Veteran’s blood pressure objectively increased during service. Indeed, the converse happened, and his blood pressure readings dropped. A conclusion of aggravation is therefore medically complex and requires medical training and experience or similar training to be considered competent evidence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The only competent evidence comes from the 2019 doctor as he had the medical training and experience to understand how hypertension could have been permanently worsened. In sum, the most competent and credible evidence of record illustrates that there is clear and unmistakable evidence that the disability was not aggravated by military service. As such, VA has met its high burden of showing by clear and unmistakable evidence both that the Veteran’s hypertension preexisted service and was not aggravated by such. Thus, the presumption of soundness is rebutted in its entirety. As the presumption of soundness is rebutted, the second element of service connection is not met and entitlement to service connection based direct theories of entitlement is not warranted. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Paul Saindon, Special 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.