Citation Nr: 20060360 Decision Date: 09/14/20 Archive Date: 09/14/20 DOCKET NO. 12-27 267A DATE: September 14, 2020 ORDER Entitlement to service connection for hypertension is denied. REMANDED Entitlement to service connection for spina bifida is remanded. FINDING OF FACT Hypertension did not have onset during the Veteran’s period of service, a disabling hypertension did not manifest to a compensable degree within one year of separation from service, and hypertension is not otherwise due to the Veteran’s period of service. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the U.S. Marine Corps from November 1972 until December 1993. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from December 2010 and February 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2016 the Veteran presented testimony at a Board hearing before the undersigned Veterans Law Judge at the local RO. All requirements for hearings have been met. 38 C.F.R. § 3.103 (c)(2) (2019); Bryant v. Shinseki, 23 Vet. App. 488 (2010). The matter was then remanded by the Board in October 2016 and July 2018 and has since been returned for further appellate review. For the issue decided herein, there has been compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for hypertension. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2019). 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2019). In addition, service connection for certain chronic diseases, including hypertension, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2019); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. The term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. See 38 C.F.R. § 4.104 Diagnostic Code 7101. Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2019); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran alleges that hypertension was first noted and diagnosed in service, and has persisted since that time. See May 2011 statement in support of claim. The Veteran reported that in service he had headaches, red eyes, and elevated blood pressure readings in service. See June 2016 hearing testimony. At the hearing, the Veteran reported that he was not diagnosed with hypertension until after separation. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Hypertension was diagnosed in November 1995, and the diagnosis has been present during the appeal period. See November 1995 Naval Hospital Record; see January 2017 VA examination report. Second, the Board finds that there were in-service symptoms. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Review of the service treatment records (STRs) shows diastolic blood pressure readings of 90mm or greater in October 1982, August 1985, October 1988, and April 1991; but not a diagnosis of hypertension. Third, the Board finds that the evidence of record does not support a finding that the currently diagnosed hypertension is related to active service. VA obtained a medical examination and opinion in July 2019. That examiner reviewed the relevant evidence, including all instances of elevated blood pressure in service, and opined that the currently diagnosed hypertension was not due to the Veteran’s period of service. The examiner explained that the elevated blood pressure readings in service did not meet the criteria for a diagnosis of hypertension, nor was the Veteran treated with antihypertensive medication in service. The examiner also noted that the hypertension was not diagnosed until more than a year after separation from service. The Board assigns this opinion significant probative value as it was based upon review of the claims file, and included a supporting explanation. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). In July 2016 correspondence, Dr. YK checked a box indicating that hypertension was directly caused by the Veteran’s period of service. For a rationale, Dr. YK explained the Veteran had left ventricular hypertrophy due to hypertensive disease and the changes were consistent with long term poor blood pressure control. Dr. YK did not explain how the hypertensive disease was due to service, and the rationale does not support the opinion provided. Accordingly, the Board assigns this opinion no significant probative value. See Prejean, 13 Vet. App. at 448-9; Stefl, 21 Vet. App. at 124. The Veteran has also asserted that his hypertension had onset during his period of service and is directly related to the elevated blood pressure readings in service. As a lay person, however, the Veteran has not displayed the medical expertise necessary to diagnosed hypertension or to provide an etiological opinion on a complex medical question such as this, the question of the development of an internal cardiovascular condition. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). Thus, the Veteran’s statement is not afforded any significant weight. Overall, the July 2019 VA medical opinion is most probative and the preponderance of the evidence shows hypertension did not have onset in service, and is not etiologically related to the Veteran’s period of service. Further, service connection cannot be established on a presumptive basis either as a disabling hypertension did not manifest in service or to a compensable degree within one year of separation from service. The Veteran was diagnosed with hypertension in November 1995, more than one year after separation from service. The 2019 examiner adequately explained that hypertension did not have onset in service or within a year of separation. Thus, the criteria for service-connection are not met on a direct or a presumptive basis. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for spina bifida is remanded. Unfortunately, this matter is again remanded for an adequate medical opinion that complies with the prior Remand directives. Most recently, the Board remanded the issue to obtain an adequate medical opinion on whether the Veteran had a current diagnosis of spina bifida occulta since 2009, and if so, whether the condition was subject to a superimposed injury during the Veteran’s period of service. In a July 2019 addendum, a VA examiner opined that spina bifida occulta was at least as likely as not due to the Veteran’s period of service. The examiner explained that the Veteran had no issue with spina bifida occulta prior to service, and the onset of the condition was in service. The condition was congenital and chronic, and did not regress over time. That same examiner provided a second, conflicting opinion on the same day in a separate examination report. In that opinion, the examiner opined that the claimed condition was not due to service because it was acute only and there was no evidence of chronicity of care. The examiner stated that service connection was already established for herniated nucleus pulposus and lumbar spine stenosis with sciatica. The examiner explained that spina bifida occulta was not an established etiology of degenerative disc disease, spinal stenosis, or facet arthropathy, or neuroforaminal narrowing. The examiner provided two conflicting opinions and failed to address whether spina bifida occulta was subject to a superimposed injury during service as requested by the prior Board remand. Thus, remand is again necessary. The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding whether spina bifida occulta was subject to a superimposed injury during the Veteran’s period of service. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the congenital defect was subject to a superimposed injury during the Veteran’s period of service. Service connection is already established for herniated nucleus pulposus and lumbar spine stenosis with sciatica. (b.) The examiner must specifically address the following: 1) a November 1974 STR noting spina bifida occulta; 2) August 2008 private imaging studies showing degenerative disc disease of the lumbar spine at L5-S1, with facet arthropathy greatest at L5-S1; and an 3) October 2013 private MRI report showing moderate L5-S1 degenerative disc disease contributing to bilateral neuroforaminal narrowing in conjunction with facet degeneration, and severe canal stenosis at L4-5 on a multifactorial basis including abroad-based dorsal disc osteophyte complex and short pedicles effacing and displacing multiple nerve roots within the central canal and contributing to the bilateral neuroforaminal narrowing greater on the left than the right. 2. Review the examination report and ensure it complies with these Remand directives prior to returning the claim to the Board. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Smith, 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.