Citation Nr: 20049997 Decision Date: 07/28/20 Archive Date: 07/28/20 DOCKET NO. 15-34 444 DATE: July 28, 2020 ORDER Entitlement to service connection for hypertension is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's hypertension manifested during an honorable period of active service and has persisted since. CONCLUSION OF LAW The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1978 to December 1989. However, the period from May 23, 1984, to his discharge is deemed dishonorable for VA purposes and a bar to VA benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In November 2018, the Board remanded the matter for additional development. Entitlement to service connection for migraines was also remanded, but a February 2019 rating decision granted that issue, and the matter is no longer before the Board. Entitlement to service connection for hypertension. The Veteran contends that he has hypertension that manifested during his period of honorable service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.03. Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disability, there must be (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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Where a Veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and a chronic disease, including hypertension, becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If a condition listed as a chronic disease in § 3.309(a) is noted during service, but is either shown not to be chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the continuity of symptomatology provisions of 38 C.F.R. § 3.303(b) only apply to a chronic disease listed in § 3.309(a)). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). VA treatment records and a January 2019 VA examination report show hypertension has been diagnosed. Therefore, the remaining question before the Board is whether the Veteran's hypertension began during, is caused by, or is otherwise etiologically related to his military service. The Board has reviewed the record and finds that there is evidence both for and against the claim. The evidence against the claim includes service treatment records that do not indicate hypertension was diagnosed during the honorable period of service from August 1978 to May 22, 1984, and the January 2019 VA examiner’s opinion that it was less likely than not that the hypertension was incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that hypertension was not diagnosed until he started having recurrent diastolic blood pressure that is predominantly 90mm or greater in 1987. He opined that obesity and smoking led to the Veteran’s hypertension. Notably, the Veteran reported in an April 2019 statement that he only smoked in 2012. The Board finds this statement is credible because VA treatment records show he denied smoking prior to 2012. The evidence for the claim includes the Veteran’s service treatment records that show an elevated blood pressure was noted multiple times during the honorable period of service. His blood pressure was recorded as 130/90 in March 1980; 140/90 in August 1980; 120/90 in September 1981; and 130/94 in May 1983. Notably, VA defines hypertension as diastolic blood pressure that is predominantly 90mm or greater. 38 C.F.R. § 4.104, Diagnostic Code 7101. The Board finds the evidence for and against finding the Veteran’s hypertension manifested during service is of equal weight. The January 2019 VA examiner opined the hypertension did not manifest during the honorable period of service and that the hypertension was caused in part by the Veteran’s smoking. However, as the Board found the Veteran’s assertion that he did not begin smoking until 2012 to be credible, the opinion is based on an inaccurate factual basis. Accordingly, the examiner’s opinion is of limited probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (finding a medical opinion based on an inaccurate factual premise has no probative value). While there are no supporting medical opinions, the Veteran’s service treatment records show a diastolic blood pressure of 90mm or greater was recorded four separate times during the period of honorable service, which supports finding the hypertension manifested during that period of service. The Board must therefore resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, service connection for hypertension is warranted. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William A. Skowronski, 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.