Citation Nr: 20036416 Decision Date: 05/27/20 Archive Date: 05/27/20 DOCKET NO. 17-34 711 DATE: May 27, 2020 ORDER Service connection for hypertension is denied. REMANDED Service connection for lateral collateral ligament sprain chronic left ankle is remanded. Service connection for lateral collateral ligament sprain recurrent right ankle is remanded. FINDING OF FACT The preponderance of the evidence of record is against a finding that the Veteran’s hypertension is related to service or was diagnosed within a year of separation from service. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1980 to October 1983 and from January 1984 to January 1987. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in March 2019 and were remanded for additional development. The Board finds that the issue of service connection for hypertension has been substantially complied with. Unfortunately, the issue of service connection for bilateral ankle disability needs to be remanded for additional development. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection for hypertension Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires the following: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition to service connection on a direct basis as delineated above, service connection may be granted on a presumptive basis for certain chronic diseases. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). A chronic disease may be presumptively service connected if it is shown to have manifested to a compensable degree within one year of separation from service or if the evidence establishes chronicity and continuity of symptomatology post-service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With respect to evidence of current disabilities, the record shows the Veteran has been diagnosed with hypertension. A current disability has therefore been demonstrated. The Veteran maintains that his hypertension is related to his service. Specifically, he stated that in 1984 he was assigned to Korea away from his wife and newborn; the stress of his new position and being away from his family caused his high blood pressure. As a layperson, the Veteran is competent to report being stressed while stationed overseas; however, the Veteran is not capable of making medical conclusions regarding hypertension because this is not a disability capable of lay observation. Thus, his statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id. However, pulmonary disorders are complex disorders which require specialized testing and training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran’s statements therein cannot be accepted as competent medical evidence. The Veteran is also not reporting an expert opinion as told to him, and his lay contentions have not subsequently been confirmed by a competent expert. In July 2015, the Veteran submitted a hypertension Disability Benefits questionnaire completed by his private physician Dr. G.S. The questionnaire stated Veteran was diagnosed with hypertension in June 2012, and it is well controlled on medication. The physician did not offer any opinion as to the etiology of the hypertension. A review of the Veteran’s STRs is devoid of any pressure readings or complaints related thereto that meet the criteria for hypertension. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2018) (the VA defines the term “hypertension” as having a diastolic pressure predominately 90 millimeters of mercury (mm Hg) or greater and the term “isolated systolic hypertension” as having systolic blood pressure predominately 160 mm Hg or greater with a diastolic blood pressure of less than 90 mm Hg). The Veteran’s blood pressure was noted several times throughout service: 08/26/1980 BP 138/74; 04/23/1984 BP 124/72; 05/24/1984 BP 120/80; 11/01/1984 BP 124/82; 12/17/1984 BP 112/82; 10/07/1985 BP 126/82; 03/10/1986 BP 160/64. In October 1986, the last blood pressure reading noted three months prior to discharge was 128/66. In August 2019, the Veteran underwent a VA examination. The examiner stated his hypertension was less likely as not onset during service and noted the in-service blood pressure readings. The examiner reviewed his records and found no indication of elevated blood pressure readings during service nor proximate to service. In January 2016 and April 2019, the Veteran was sent a letter requesting additional evidence to support his claim, particularly any medical treatment records or physician statements. To date, no such evidence has been submitted. The duty to assist is not a one-way street. A claimant may not passively wait for assistance when his cooperation is needed for evidentiary development he has asserted is critical to a claim for VA benefits [nor may he deliberately choose to ignore requests for authorizations for VA to secure records deemed necessary to properly adjudicate his claims]. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Given the above, the Board finds the preponderance of the evidence does not establish an in-service incurrence. Necessarily, the nexus element cannot be met. As a result, service connection for hypertension on a direct basis must be denied. Further, the Board finds the preponderance of the evidence does not establish the Veteran’s hypertension manifested to a compensable degree within one year of separation or demonstrate chronicity and continuity of symptomatology post-separation. Therefore, the Board finds that service connection for hypertension on a presumptive basis as a chronic disease is also not warranted. REASONS FOR REMAND In March 2019, the Board remanded the issues of lateral collateral ligament sprain (chronic) of the left and right ankles to obtain a medical opinion. The Board specifically requested that the examiner address the Veteran’s contentions of ongoing pain since service. In August 2019, the Veteran underwent a VA examination. The examiner found the ankle disabilities less likely than not incurred in or caused by service. The examiner noted the Veteran’s in-service injuries, his post service occupation as a fire fighter, and concluded that his current diagnosis of bilateral pes planus with bilateral hallux valgus could be causing his ankle pain. He stated that the Veteran’s degenerative ankle changes are consistent with his age. Unfortunately, the examiner did not address the Veteran’s contentions of ongoing pain. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for his bilateral ankle conditions and obtain any outstanding records and associate them with the Veteran’s claims file. 2. Obtain an addendum opinion regarding the Veteran’s bilateral ankle conditions. An examination of the Veteran is not required unless deemed necessary by the medical professional selected to offer the opinion. The claims file and a copy of this remand must be provided to and reviewed by the examiner. The examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that his ankle disabilities are related to an in-service injury, event, or disease. The examiner should address the Veteran’s lay statements regarding the nature, onset and chronicity of symptoms. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. For the purposes of this remand only, and for the limited purpose of conducting the examination and providing a medical opinion, the examiner should assume that the Veteran’s account of his injury in service is true. If there is a medical reason to doubt its veracity, the examiner should explain why the Veteran’s statements are inconsistent with principles of medical science and/or the evidence in this case. A complete rationale for all opinions should be provided. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. V. Palatt, 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.