Citation Nr: 20054081 Decision Date: 08/14/20 Archive Date: 08/14/20 DOCKET NO. 06-01 600 DATE: August 14, 2020 ORDER Entitlement to service connection for hypertension, as to include secondary to service-connected malaria is denied. FINDING OF FACT The Veteran’s hypertension is not etiologically related to service, manifest within one year of separating from service, or caused or aggravated by service-connected malaria. 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, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1959 to May 1962. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2005 rating decision of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The record indicates that the Veteran is homeless. The record noted that VA was unable to locate the Veteran’s current location. The Board attempted to locate the Veteran however, no address was found. In a December 2019 message from Homeless Veteran Outreach Coordinator (HVOC) notes that due to the limited contacts to the Veteran and attempts at tracing the Veteran based on the information in the Veteran’s file had not yielded any information on the current location of the Veteran. The Board notes it previously remanded this matter in July 2019 to obtain a VA examination or if the Veteran could not be located a medical opinion. As the AOJ did obtain a VA medical opinion, the Board finds that VA substantially complied with the VA directives despite VA’s inability to locate the Veteran. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required). Entitlement to service connection for hypertension The Veteran’s contends that his hypertension began in service, or in the alternative was caused or aggravated by his service-connected malaria. The Veteran’s primary contention is that during service he was diagnosed with prehypertension, which, the Veteran contends should be service connected. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The second and third elements may be established by showing continuity of symptomatology for certain specified diseases. Continuity of symptomatology may be shown by demonstrating “(1) that a condition was ‘noted’ during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316 ; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). Service connection can 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). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303 (b). Where a veteran served continuously for ninety days or more during a period of war or during peacetime service after December 31, 1946, and cardiovascular-renal disease, including hypertension becomes manifest to a degree of ten percent within one year 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. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The disease need not be diagnosed within a presumptive period, it must be shown by acceptable medical or lay evidence, that there were characteristics manifestations of the disease to the required degree during that time. Id. In this decision, all blood pressure measurements are noted in units of pressure in millimeters of mercury (mmHg). For VA compensation purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 or greater; and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 or greater with diastolic blood pressure less than 90. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). In addition, hypertension must be confirmed by readings taken two or more times on at least three different days. See id. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Initially, the Board finds that the Veteran has a current diagnosis of hypertension. The Veteran’s post-service treatment records consistently indicate that the Veteran had hypertension. The record indicates that the Veteran was first documented with hypertension for VA compensation purposes in September 1978. Throughout the appellate period the Veteran’s VA treatment records have documented a current diagnosis of hypertension. The Veteran’s service treatment records do not indicate the Veteran was treated for hypertension. The Veteran’s service entrance examination noted the Veteran’s blood pressure was 110/80; in February 1960, the Veteran’s blood pressure was 120/80; in August 1961 the Veteran’s blood pressure was recorded as 128/70; and upon separation in April 1962, the Veteran’s blood pressure was 134/70. The Veteran’s service treatment records do not indicate the Veteran complained of, was treated for, or diagnosed with hypertension. In September 1978, a VA treatment records notes that the Veteran was seen for hot and cold chills. The Veteran reported he had a malaria attack on Sunday. The record revealed the Veteran did not have hepatosplenomegaly, the Veteran’s temperature was 97.4, and there was no diagnosis of malaria. The Veteran was diagnosis with mild hypertension. In January 2020, VA obtained a medical opinion. The VA examiner opined that the Veteran’s hypertension was at least as likely as not incurred in the Veteran’s active duty. The examiner reasoned that during service the Veteran had elevated blood pressure reading of 134/70 and a subsequent September 1978 VA treatment records noting blood pressure readings of 160/110 and 150/108 as evidence of 3 elevated blood pressure reading on at least 2 separate health care visits to meet the criteria for a diagnosis of hypertension and subsequently as evidence for a nexus for the claim. In June 2020, the examiner amended his opinion. The examiner opined that it is less likely than not that the Veteran’s hypertension was caused by or a result of his military service. The examiner reasoned that the September 1978 blood pressure readings were not proximate to the first elevated reading in April 1962 and there was no evidence of blood pressure medication started while in military service. The January 2020 VA examiner also opined that the Veteran’s hypertension is less likely than not caused by, a result of, or aggravated by the Veteran’s service-connected malaria. The examiner reasoned that although a September 1978 VA treatment record showed the Veteran had a “malaria attack on Sunday,” the physical examination showed no objective evidence of residuals of malaria. The examiner noted there was no hepatosplenomegaly, the Veteran’s temperature was 97.4, and there was no diagnosis of malaria. The examiner noted there was mild hypertension and tension headaches. The examiner further reasoned that despite a history of malaria, there was no medical evidence showing either active disease or residuals of malaria. The examiner stated that he was not aware of any evidence based on medical literature or evidence in the record that demonstrated the Veteran’s history of malaria would have predisposed the Veteran in the development of, or the aggravation of, hypertension. In June 2003, the Veteran submitted a letter from the Department of Health and Human Services (HHS). Dr. L., from HHS, opined that the Veteran’s documented blood pressure in 1962 of 120/80 would now be classified as prehypertension. Dr. L. further stated that the first stage of hypertension is currently diagnosed at levels of 140/90 and above and indicates the need for medications without other findings. In August 2005, the Veteran submitted an article that documented hypertension as blood pressure levels of 140/90. The Veteran documented his blood pressure in service and stated these levels were prehypertension. The Veteran noted that his blood pressure increased and therefore aggravated after his malaria diagnosis. The Veteran’s brother submitted a statement in May 2003. The Veteran stated while the Veteran was in service in 1961, the Veteran became ill and was hospitalized. The Veteran’s brother stated the Veteran was treated for hypertension, malaria, and headaches. The Veteran’s brother stated that he was aware the Veteran developed high blood pressure while in-service in 1961, which was caused by malaria. The Board finds that the Veteran and his brother are not competent to determine that his hypertension began in service or aggravated by his malaria. While the Veteran (or other lay person) can attest to factual matters of which he has first-hand knowledge, he is not competent to state that he had been inadvertently not diagnosed with hypertension during service. Routen v. Brown, 10 Vet. App. 183, 186 (1997) (“a layperson is generally not capable of opining on matters requiring medical knowledge”). Neither the Veteran nor his brother have demonstrated the medical expertise required to determine the etiology or a medical link of hypertension to the Veteran’s service or his service-connected malaria. The Board finds that the evidence shows that the Veteran’s hypertension likely did not manifest during service. The Veteran’s service treatment records indicate that his blood pressure measurements were not within the range that VA considers hypertension for compensation purposes. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Although the evidence demonstrates that the Veteran had prehypertension in service, prehypertension is not hypertension as defined by the regulations, or HHS, as noted by Dr. L.. Further, the Board finds that the Veteran’s current hypertension is not etiologically related to service as the January 2020 VA examiner found that the Veteran’s hypertension is not related to service. There is no probative evidence to the contrary. The evidence also indicates that the Veteran first demonstrated hypertension for VA compensation purposes in 1978, 16 years after he separated from service. Therefore, the Veteran did not meet the requirement for presumptive service connection for his hypertension under 38 C.F.R. §§ 3.307. The Board finds that the Veteran’s current hypertension was not caused or aggravated by the Veteran’s malaria. The Board notes that the Veteran was first diagnosed with hypertension for VA compensation purposes in conjunction with some evidence of a malaria issue. However, the most probative evidence, the January 2020 VA medical opinion, demonstrated that the Veteran’s malaria did not cause or aggravate the Veteran’s hypertension. Specifically, the examiner found that the medical evidence in September 1978 did not demonstrate any residuals of malaria. Further, the January 2020 examiner found there is no evidence in the medical literature or in the record that malaria causes or aggravates hypertension. Therefore, the Board finds that service connection for hypertension secondary to his service-connected malaria is not warranted. The Board notes that the record includes multiple statements and allegations by the Veteran that his service treatment records and other medical records were altered, doctored, and included signatures that were not his. In May 2003 VA responded to the Veteran’s claims. VA stated that they had reviewed the records submitted by the Veteran, his health care providers, VA medical facilities, and the military. VA found no evidence that the records were tampered with or falsified. The law provides for a presumption of regularity with regard to processes and procedures throughout the VA administrative process. See generally, Marsh v. Nicholson, 19 Vet. App. 381, 386-87 (2005); Crain v. Principi, 17 Vet. App. 182, 186 (2003); Redding v. West, 13 Vet. App. 512, 515 (2000). Yet it is recognized that the presumption of regularity is not absolute and may be rebutted by the submission of “clear evidence to the contrary.” Warfield v. Gober, 10 Vet. App. 483, 486 (1997). In this regard, the Court has held that the question of whether clear evidence exists to rebut the presumption of regularity is a question of law. See Crain v. Principi, 17 Vet. App. 182, 188 (2003). The Board finds that the Veteran’s statements and allegations does not represent clear evidence that records were altered. Notably, VA specifically found there was no evidence of alterations or tampering. Therefore, the Board finds that the evidence of record is complete and accurate as it pertains to the Veteran’s service connection claim. For the reasons set forth above, the Board finds that there is a preponderance of the evidence against finding that the Veteran’s hypertension incurred in service or is proximately due to or aggravated by his service-connected malaria. The benefit-of-the-doubt rule does not apply, and entitlement to service connection for hypertension denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102; 4.3; Gilbert, 1 Vet. App. at 55. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert Batten 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.