Citation Nr: 21000247 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 19-00 802 DATE: January 4, 2021 REMANDED Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1961 to January 1964. He served honorably in the U.S. Army, including service in Germany. The Board thanks the Veteran for his service to our country. The Board previously remanded this case in September 2019 for additional development. The case has now returned to the Board for further appellate review. Entitlement to service connection for hypertension is remanded. A remand is warranted for an addendum opinion as to the nature and etiology of the Veteran’s hypertension. In this case, in a September 2017 VA examination report, the examiner opined, based on language provided in the examination request, that the Veteran’s hypertension, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression but did not explain how the disorder clearly and unmistakably existed prior to service; accordingly, the Board remanded the issue for a rationale. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran’s hypertension preexisted his military service from February 1961 to January 1964. The Veteran’s February 1961 entrance examination is absent of any notations of defects, infirmities, or disorders. Therefore, with respect to hypertension, the presumption of soundness attaches. 38 C.F.R. § 3.304(b). Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence “‘cannot be misinterpreted and misunderstood, i.e., it is undebatable.’” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The most competent and credible evidence of record illustrates that the Veteran’s hypertension did not clearly and unmistakably preexist service. In determining whether the condition preexisted service, a history of the condition noted on an entrance examination “will be considered together with all other material evidence in determinations as to inception.” 38 C.F.R. § 3.304(b)(1). In a February 1961 report of medical history, the Veteran endorsed having or having had high or low blood pressure; in the physician’s summary, the examiner noted “hypertension – 1958.” In a February 1961 report of medical examination, a clinical evaluation showed normal vascular system. Blood pressure was noted as 134/80. The examiner did not note hypertension but did note that the Veteran had been prescribed medication for hyper or hypothyroidism and stated, “no clinical evidence of thyroid disease.” In a November 1963 report of medical history, the examiner noted that the Veteran had hyperthyroidism in 1958 and had high blood pressure during hyperthyroidism. In a July 2020 addendum opinion, the clinician concluded that the Veteran’s hypertension clearly and unmistakably pre-existed service, as there is objective evidence of a history of hypertension documented in the Veteran’s February 1, 1961 service treatment records, presumably referring to the February 1, 1961 report of medical history. While it is clear the 2020 opinion provider relied upon a history of the condition in the entrance examination, the regulations require that determinations as to inception also consider all other material evidence. While the entrance report of medical history notes that the Veteran had hypertension prior to service, medical evidence of record notes that the hypertension manifested in 1958 during hyperthyroidism and that there was no clinical evidence of thyroid disease at entrance. Additionally, there are no medical notations of hypertension prior to service and no evidence that hypertension noted in the report of medical history at entrance is based on anything other than the Veteran’s report. For these reasons, the Board finds that the evidence is not clear and unmistakable that hypertension preexisted service. As the presumption of soundness has not been rebutted but there is evidence of elevated blood pressure in service, a nexus opinion is needed as to the nature and etiology of the Veteran’s hypertension. The Board also notes that, in December 2019, responding to a November 2019 VA request, the Veteran submitted a 21-4142 authorizing a release of medical information from a private treatment facility; medical records were subsequently received from this facility. Later that month, the Veteran reported that a Dr. B in Midland, Texas has stated that his hypertension did not preexist service but that service had “made it worse.” A lay account of a physician's statement, "filtered as it [is] through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence." Robinette v. Brown, 8 Vet. App. 69, 77 (1995). Therefore, the Veteran should be afforded an opportunity to get a written statement from Dr. B. if he wishes. In September 2020, the Veteran identified another provider from whom he had received medical treatment. Accordingly, an effort should be made to obtain these records. The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and non-VA treatment the Veteran has received for the disorder on appeal. Please ask the Veteran to provide: (a.) a written statement from Dr. B. that supports the claim such as the Veteran described when he indicated that Dr. B stated hypertension did not preexist service but had blood pressure had worsened in service; and (b.) the releases necessary for VA to secure any adequately identified private treatment records, including for i. a Dr. B in Midland, Texas (referenced in a handwritten note on a Medical Treatment Record – Government Facility document received December 16, 2019), and ii. a Dr. K.D.A., (identified in a form VA 21-4138 received September 30, 2020). 2. After the action requested in paragraph 1 above is complete, please refer the claim to a clinician for a nexus opinion as to the nature and etiology of the Veteran’s hypertension. The Veteran’s claims-file must be made available to and reviewed by the clinician. Based on review of the record, the clinician is requested to provide an opinion as to whether the Veteran’s hypertension is at least as likely as not (a 50% or greater probability) related to service. The clinician is advised that the presumption of soundness is not rebutted so the examiner should take as fact that the Veteran was sound with respect to hypertension at entrance to service. The clinician is requested to consider and explain, as appropriate: • A December 8, 1989 record noting hypertension since 1961 but no treatment since 1975; • A May 21, 1990 record noting hypertension acceleration and that the Veteran’s thyroid tests were within normal limits; and • A July 16, 1990 record stating that the most likely diagnosis is essential hypertension. (See pages 121, 110-111, and 68, respectively, of a “Medical Treatment Records – Government Facility” document associated with the record on April 20, 2020.) ONLY IF the clinician determines that an examination is necessary for the addendum opinion, the Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of the disorder. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician should take into consideration that the Veteran is competent to report in service and post-service symptom experiences; other witnesses are competent to report observable symptoms. If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Vashaw, 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.