Citation Nr: 20052345 Decision Date: 08/06/20 Archive Date: 08/06/20 DOCKET NO. 16-37 462 DATE: August 6, 2020 ORDER Entitlement to service connection for hypertension is denied. FINDING OF FACT Hypertension for VA purposes did not have its onset during active service or within one year of service discharge and is not otherwise related to active service. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1973 to September 1977. The Veteran testified before undersigned Veterans Law Judge (VLJ) at a December 2018 Travel Board hearing at the Houston Regional Office (RO) and a transcript of the hearing has been associated with the claims file. This matter was previously remanded by the Board in May 2019 for additional development. Specifically, the Veteran was requested to identify any outstanding private treatment records, including records from a primary care physician in Nederland, Texas, and a private cardiologist, and authorize VA to obtain them on his behalf. Additionally, the Veteran was asked to identify the VA facility from which he sought treatment in 1977 in order to assist VA with obtaining any outstanding VA treatment records from 1977. Following the May 2019 Board remand, VA sent the Veteran a development letter in July 2019 and requested the relevant information, including for the Veteran to complete and return a VA Form 21-4142 to authorize VA to obtain relevant private treatment records. The Veteran did not respond to the July 2019 development letter, either to provide the requested information, to authorize VA to obtain relevant private treatment records, or by submitting records to VA. Additionally, in May 2020, the Houston VAMC reported that there were no records for the time period requested, and, later that same month, VA informed the Veteran that the requested VA treatment records either did not exist or were determined to be unavailable, and that further efforts by VA to obtain the records would be futile. Given the above, the Board finds that VA has satisfied its duty to assist in attempting to obtain the aforementioned records. As such, the Board also finds that there has been substantial compliance with the May 2019 remand directives and that adjudication of the Veteran’s claim is warranted. Finally, the Board is mindful that the Veteran’s previously remanded claims of entitlement to service connection for bilateral hearing loss and tinnitus were fully granted within an April 2020 rating decision. As such, these issues are no longer before the Board. Entitlement to service connection for hypertension. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. To establish a right to compensation for a present disability, 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. For certain chronic disorders, including hypertension, service connection may be granted on a presumptive basis if the disease manifests within one year following service discharge. Even where service connection cannot be presumed, service connection may still be established on a direct basis. The Veteran claims generally that his hypertension had its onset during active service and has continued since that time. At the December 2018 Travel Board hearing, the Veteran testified that he was diagnosed with hypertension during active service due to various work duties and pressures from working in the military, including working on the flight lines and doing strenuous work. He also stated that he was seen at sick bay and given medication for his blood pressure, and that following active service, he was treated by a private physician in Nederland, Texas, as well as a heart doctor, for his hypertension. His agent further stated that he was seen at the VA Medical Center in 1977 for blood pressure problems which had existed since that time. Following a review of the evidence of record, and as discussed further below, the Board finds that the preponderance of the evidence weighs against the Veteran’s claim of entitlement to service connection for hypertension. The reasons follow. As to evidence of a current disability, the Board is mindful that hypertension for VA disability purposes means that the diastolic blood pressure is predominantly 90 or more, or systolic blood pressure is predominantly 160 or more, and hypertension must be confirmed by readings taken two or more times on three different days. 38 C.F.R. § 4.104 Diagnostic Code (DC) 7101, Note (1). Nevertheless, as post-service VA treatment records document the Veteran’s history of benign essential hypertension during the pendency of the appeal, the Board resolves any doubt in favor of the Veteran and finds this first criterion is met. Regarding an in-service disease or injury, service treatment records do not document complaints, treatment, or diagnosis of hypertension according to VA regulations. The Veteran’s February 1973 enlistment Report of Medical Examination documents a normal clinical evaluation of the Veteran’s heart and vascular system, with a current blood pressure of 130/68 and without any notation of hypertension as a defect or diagnosis. Additionally, within a concurrent Report of Medical History at enlistment, the Veteran denied a history of heart trouble or high blood pressure. A November 1976 hypertension screening note documents that the Veteran’s current blood pressure was 130/84, and a subsequent February 1977 treatment note documents a current blood pressure of 130/86. Finally, the Veteran’s July 1977 separation Report of Medical Examination also documents a normal clinical evaluation of the Veteran’s heart and vascular system, with current blood pressure of 110/60 and without any notation of a hypertension defect or diagnosis. Given the above, the Board finds that the preponderance of the evidence is against a finding that hypertension for VA disability purposes first had its onset during active service, and as such, a grant of service connection is not warranted on a direct basis. Additionally, for presumptive service connection to be warranted, the chronic disease must have manifested to a compensable degree within one year of service discharge. A compensable rating for hypertension requires diastolic pressures predominantly 100 or more, or; systolic pressures predominantly 160 or more, or; an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, (DC) 7101. Although the Board acknowledges the assertion of the Veteran’s agent at the December 2018 Travel Board hearing that the Veteran was treated for hypertension in 1977 following active service, the Board affords more probative value to the objective medical evidence of record, which includes the Houston VAMC report that there were no available treatment records reported by the Veteran in 1977, as well as a March 1978 VA examination afforded in conjunction with several prior unrelated claims by the Veteran that does not document a notation or diagnosis of hypertension. Additionally, subsequent VA treatment records from January 2014 document the Veteran’s own report of hypertension since 2008. All of this is probative evidence which weighs against a finding that the Veteran’s current hypertension first manifested during active service or within one year of service discharge; therefore, presumptive service connection for hypertension as a chronic disease is not warranted. Additionally, the Board finds that the preponderance of the evidence is against a nexus between the Veteran’s current hypertension and his active service. As noted above, a March 1978 VA examination conducted in conjunction with other unrelated claims does not document any mention of hypertension of high blood pressure. Subsequent VA treatment records document that the Veteran established VA medical care in January 2014. At that time, he reported a history of white coat hypertension since 2008 and specifically denied prior treatment at any VA clinic in the past. He stated that he was seen by a private physician once a year and that his most recent workup in December 2013 was “normal.” Additionally, he reported seeing a private cardiologist every six months for hypertension control, including prescription medication, and noted that a stress test done two years previously was “fine.” VA problem lists from February 2014 and November 2017 continue to document the Veteran’s benign essential hypertension. Notably, however, there is no competent medical evidence of a nexus between the Veteran’s current hypertension and his active service. The Board has also considered the relevant lay evidence of record, including the Veteran’s December 2018 hearing testimony that he was diagnosed with hypertension during active service and received treatment, including medication, at sick bay. However, such statements are inconsistent with the objective service treatment records discussed above, which do not document any treatment or diagnosis of hypertension during active service, and as such, they are of no probative value. Moreover, while the lay statements of record are probative insofar as they report observable symptomatology, to the extent that the such statements assert that the Veteran’s current hypertension had its onset within one year of active service or is otherwise related to his active service, such statements lack probative value as the Veteran and his previous representative have not been shown to possess medical expertise to diagnose hypertension or to render a nexus opinion regarding a complex and internal disease process. To the extent that the Veteran and his agent assert that he has had hypertension since active service, the Board finds that such statements are inconsistent with the service treatment records, which document a normal separation physical examination in July 1977, as well as subsequent treatment records which do not document hypertension until 2008 at the earliest by the Veteran’s own report in January 2014, when he first established medical care with VA. To the extent that the Veteran and his agent have asserted treatment for hypertension following active service, including by a private physician in Nederland, Texas, as well as a private heart doctor, and at a VA Medical Center in 1977, the Board finds that such reports also lack probative value, as they are not corroborated by the evidence of record. As mentioned above, VA has undertaken efforts to obtain such records, and they have either been reported as unavailable by the VAMC, or the Veteran has not assisted VA by further identifying such treatment, authorizing VA to obtain such records on his behalf, or providing such records to VA. Additionally, when the Veteran sought to establish care with the Beaumont VA outpatient treatment clinic in January 2014, he reported a past medical history of hypertension since 2008. The U.S. Court of Appeals for Veterans Claims has recognized how a medical history recounted in the course of medical evaluation and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to receive the best or most appropriate medical care. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The Board finds such statement from the Veteran at that time to be highly probative as to when hypertension had its onset, which is decades following service discharge. Thus, the preponderance of evidence weighs against a finding of a nexus between the Veteran’s current hypertension and his active service, including that hypertension first had onset during active service or within the first post-service year, or that it was continuous therefrom to the present. VA has not provided the Veteran with an examination or opinion in connection with the claim for service connection for hypertension. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the evidence does not show that an event, injury, or disease occurred in service, or an indication that the Veteran’s post-service hypertension may be associated with his active service. For a VA examination to be warranted, all the McLendon criteria have to be met, and at least one of the criteria is not met. Therefore, entitlement to a VA examination is not warranted for the claim for service connection for hypertension. Given all of the above, the Board finds that the preponderance of evidence weighs against the Veteran’s claim for service connection for hypertension. As such, there is no reasonable doubt to be resolved, and the claim for service connection is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Chad Johnson, 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.