Citation Nr: 20052301 Decision Date: 08/06/20 Archive Date: 08/06/20 DOCKET NO. 18-06 827 DATE: August 6, 2020 ORDER Entitlement to service connection for hypertension is denied. FINDING OF FACT The weight of competent and credible evidence shows that the Veteran does not have hypertension that met the VA criteria for disability during the appellate period. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1969 to April 1971 including service in the Republic of Vietnam from June 1969 to April 1971. The Board previously remanded the claim in June 2018. The Board finds that the subsequent development letters were compliance with the Board’s remand instructions. As such, the Board finds there has been substantial compliance with the prior Board remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board’s duty to “insure [the RO’s] compliance” with the terms of its remand orders); D’Aries v. Peake, 22 Vet. App. 97 (2008). In a May 2020 rating decision, service connection was granted for heart disease and diabetes mellitus type II. As this represents a complete grant of the benefits sought on appeal, the issues are no longer before the Board. Service Connection The Veteran seeks entitlement to service connection for hypertension disability. Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2019). In general, service connection requires competent evidence showing: (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). Alternatively, service connection may be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The theory of continuity of symptomatology is an alternative route to establish service connection for specific chronic diseases and can only be used in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Gilbert v. Derwinski, 1 Vet. App. 4 (1990). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Furthermore, 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 of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Entitlement to service connection for hypertension The Veteran put forward a claim of service connection for hypertension in March 2017. He contends that his disorder is caused by Agent Orange exposure in service. The Veteran has been granted service connection for hypertensive heart disease. Under 38 C.F.R. § 4.104, Diagnostic Code 7101 Note (3) hypertension is rated separately from hypertensive heart disease and other types of heart disease. Hypertension, as a disability for VA compensation purposes, is specifically defined in the regulations. Blood pressure measurements are expressed as systolic divided by diastolic pressure in millimeters of mercury (mmHg). Hypertension is defined as diastolic blood pressure of predominantly 90 or greater, or systolic blood pressure of predominantly 160 or greater with a diastolic blood pressure of less than 90. See 38 C.F.R. § 4.104, Diagnostic Code 7101. The Board finds that the Veteran’s claim of hypertension must be denied, as the weight of competent and credible evidence shows that at no point in the appellate period did the Veteran meet this criteria for hypertension as a disability. Service treatment records are silent for any symptoms, diagnoses, or treatment for hypertension. Blood pressure measurements were all in the normal range. Personnel records show that the Veteran served in Vietnam from June 1970 to April 1971 and is presumed to have been exposed to designated herbicide agents. The Board acknowledged that the Veteran’s attorney requested the Veteran’s treatment records and indicated that outstanding and relevant treatment records had not been considered by VA. As such, the Board issued a remand order in June 2018. See June 2018 BVA Decision. VA subsequently sent the Veteran development letters in October 2019 and November 2019. After receiving the Veteran’s VA 21-4142, VA sent out three individual private 3rd party letters in November 2019, requesting the Veteran’s medical records. The Veteran was sent another development letter in December 2019, explaining that VA had made follow-up requests for all three private medical providers, but that it was still the responsibility of the Veteran to ensure that VA received the identified medical documents. See December 2019 Subsequent Development Letter. VA further informed the Veteran that the letters sent to one of the identified medical providers had been returned as unclaimed in March 2020. This was acknowledged by the Veteran’s attorney in April 2020. See April 2020 Third Party Correspondence. The Board finds that these actions have met shown substantial compliance with the Board’s remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board’s duty to “insure [the RO’s] compliance” with the terms of its remand orders); D’Aries v. Peake, 22 Vet. App. 97 (2008). After this development, VA received medical records in June 2020. A review of the Veteran’s medical records shows that the Veteran received a physical examination in August 2017, April 2018, and August 2018. His blood pressure was 130/70, 130/80 and 130/80. In all three reports, hypertension was not listed under “current diagnosis” but rather under “problem history.” See June 2020 Medical treatment Record – Non – Government Facility, pp. 5, 8, 10. The Board notes that none of the aforementioned blood pressure readings meet the requirements of a disability for VA compensation purposes. 38 C.F.R. § 4.104, Diagnostic Code 7101. The Board acknowledges the Veteran’s representative’s contention that a listing of hypertension in a “problem history” equates a current diagnosis. However, the same document has a listing for “current diagnosis,” and it did not include hypertension. Compensation is provided for disability, not necessarily a diagnosis or the underlying cause, with consideration of the impairment of function and earning capacity. See generally, Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). The requirement for a current disability is satisfied when a claimant has a disability either at the time a claim for VA compensation is filed, or at any time during the pendency of that claim. A claimant may be granted service connection even though the disability resolves prior to the Secretary’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the present case, the evidence of record does not show a disability of hypertension during the pendency of the appeal. The Board also acknowledges the contention that the Veteran’s treatment with medication used for hypertension equals hypertension as a disability. The record suggests that in the past the Veteran was found to have elevated blood pressure and was prescribed medication for control which has been successful even though he developed hypertensive heart disease as separate service connected disability. The regulation cited above that defines hypertension as a disability includes consideration of the effect of medication. As lay persons, neither the Veteran nor his attorney are competent to diagnose hypertension, as this required specialized medical education, experience, and training, which they have not demonstrated. See Jandreau, 492 F.3d at 1376-77 ; see also Jones, 12 Vet. App. at 385. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110 ; Degmetich v. Brown, 104 F.3d. 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. In the absence of proof of a present disability due to disease or injury that occurred in service, there can be no valid claim. As the evidence does not show that the Veteran has a disability of hypertension, the Board finds that the Veteran is not entitled to service connection. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Abels, 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.