Citation Nr: 21001796 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-53 286 DATE: January 11, 2021 ISSUE Entitlement to service connection for hypertension, to include as due to service-connected other specified trauma and stressor related disorder (claimed as post-traumatic stress disorder (PTSD)). ORDER Entitlement to service connection for hypertension, to include as due to service-connected other specified trauma and stressor related disorder (claimed as post-traumatic stress disorder (PTSD)) is denied. FINDING OF FACT The Veteran’s hypertension, which was not diagnosed until many years after service, is not shown to be causally or etiologically related to any disease, injury, or incident in service, nor is it proximately due to or aggravated by his service-connected other specified trauma and stressor related disorder. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension, to include as due to service-connected other specified trauma and stressor related disorder have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Marine Corps from July 1982 to April 1995. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran and his Spouse presented testimony in a Travel Board hearing before the undersigned. A copy of the transcript has been associated with the claims file. In November 2019, the Board remanded this matter for further development and adjudication. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to service connection for hypertension, to include as due to service-connected other specified trauma and stressor related disorder (claimed as post-traumatic stress disorder (PTSD)). The Veteran is claiming that his hypertension is related to service. The Veteran noted during his hearing that, while he was not diagnosed with high blood pressure in the military, he believes that this started in the military because “my blood pressure just gradually got higher and higher and higher and I still have it.” See September 2019 Hearing Transcript. The Veteran has also claimed that his high blood pressure may be related to his anxiety, which is a symptom associated with his service-connected other specified trauma and stressor related disorder. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence 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. 38 C.F.R. § § 3.303(a). Service connection may also be granted as secondary to a currently service-connected disability. To meet the criteria for secondary service connection, a Veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include hypertension, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For hypertension, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307 (a)(3). Service connection for hypertension can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303 (b). For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In deciding the Veteran’s claim, 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, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To begin, the Veteran has a current diagnosis of hypertension. The Veteran’s claims file includes medical records from a private medical facility. Numerous records from this private facility indicate that the Veteran has a diagnosis of “essential hypertension,” and that he has been prescribed high blood pressure medication since at least January 2014. These private records do not contain an etiological opinion for the Veteran’s hypertension. The Veteran’s claims file includes a VA examination from September 2015. The VA examiner had access to the Veteran’s claims file and conducted an in-person examination. From this exam, the Veteran was diagnosed with hypertension. The Veteran told the examiner that the “onset of the symptoms is [in the] 1990s” when the Veteran was on active duty. An etiological opinion was also not rendered on this VA examination. As the Veteran’s claims file contains private medical records of a diagnosis of hypertension, which was later confirmed by the September 2015 VA examination, the Board finds that the Veteran has a current diagnosis of hypertension. Thus, he has met the first criteria for entitlement to service connection. 38 C.F.R. § 3.310. Turning to the second criteria, the Veteran has claimed that his high blood pressure may be due to anxiety and his psychiatric disability. The Board notes that the Veteran is currently service connected for “other specified trauma and stressor related disorder (claimed as post-traumatic stress disorder)”. A rating decision from November 2015 indicates that anxiety is an associated symptom of his psychiatric disorder. Thus, the Veteran has also met the second criteria for entitlement to service connection, insofar as he has a current service-connected disability. 38 C.F.R. § 3.310. Turning to the final criteria, in the Veteran’s NOD from December 2015, he wrote that “while I never was treated or medicated for the problem, I feel that the hypertension that I have today is a continuation of the disease that started on active duty.” He also wrote that, alternatively, “I have anxiety which is service connected and may be contributing to the hypertension [making it] secondary to the mental health condition.” In the Veteran’s Form 9 from October 2016, he wrote that he had “high blood pressure readings while on active duty. These readings went up and down many times over the years, but I did not visit sick call for every instance of hypertension.” The Veteran is competent to report as to his experiences, such as those associated with his active duty service. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Having said that, the record does not reflect that the Veteran possesses the requisite expertise to provide any medical diagnosis or opinion on etiology, and his lay opinions on this matter, insofar as they are intended as such, cannot be considered competent evidence in support of his claim. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (affirming that lay evidence is generally not competent to establish medical diagnosis or etiology). As discussed above, the private medical reports and the September 2015 VA examination did not include an etiological opinion regarding the Veteran’s claim. As a result, the Veteran’s claim was remanded for an etiological opinion in November 2019. The Veteran was therefore given a VA medical examination in September 2020. It is clear from the report of that examination that the examiner reviewed the Veteran’s claims file. The examiner listened to the Veteran’s lay statements, including his assertion that his hypertension “may be due to anxiety and his psychiatric disability.” The VA examiner noted that the first time that the Veteran was diagnosed with hypertension was in 2010. The examiner cited a private medical report that from November 2010 that indicated that the Veteran had high blood pressure, and to “recheck again in 3-4 weeks, if [blood pressure] still elevated, start treatment.” The VA examiner then indicated that the Veteran’s diagnosed hypertension was less likely than not due to his active duty service. The following rationale was provided: There was no condition identified during military service found in the records provided for review that would cause hypertension [approximately] 20 years post military service discharge when HTN was diagnosed. Following that, the examiner wrote that the Veteran’s hypertension was not proximately due to or the result of the Veteran’s service-connected PTSD. The following rationale was provided: Although the claimant’s [blood pressure] was temporarily elevated on arrival to the clinic at 150/100, his BP on repeat testing was 130/80. A primary stressor for the claimant’s anxiety was military service during the Gulf War at which time he was exposed to repeated SCUD missile attacks. That was in 1991. His hypertension was not noted in the medical record until approx. 20 years later. The VA examiner then offered a final opinion, writing that the Veteran’s hypertension was not aggravated beyond its natural progression by the service-connected disability. The following rationale was provided: The claimant’s HTN was not diagnosed until approx. 20 years post military service. There does not appear to be any relationship between the claimant’s hypertension and military service. There is no identifiable diagnosis acquired in the military that is persistent and found to permanently aggravate his HTN. The claimant does not appear to have permanent aggravation of his condition as his [blood pressure] has been stable on monotherapy since initiation of treatment 20 years post military service. As such, the VA examiner provided a negative etiological opinion on both direct and secondary service connection, which also addressed proximate cause as well as possible aggravation. There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the etiology of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the Veteran’s hypertension connected to the Veteran’s service on a direct or secondary basis. To begin, the only available medical evidence in the Veteran’s claims file that contains an etiological opinion provided a negative one. The examiner addressed each of the Veteran’s theories of direct and secondary service connection, listened to the Veteran’s lay statements, and reviewed the Veteran’s claims file. The rationale provided for each separate opinion addresses both of the Veteran’s theories, that his hypertension may be due to his active duty service, and/or that his hypertension has been aggravated by the anxiety symptom of his psychiatric disorder. The VA correctly cited to medical records showing that the Veteran’s first diagnosis of hypertension was in 2010, nearly two decades following his separation from service. This conclusion is consistent with established VA case law, which recognizes that the passage of many years between discharge and medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxon v. Grober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The VA examiner also addressed the Veteran’s theory of secondary service connection, noting that that the Veteran’s stable blood pressure readings since hypertension’s initial diagnosis provide negative evidence of proximation or aggravation. There are no competent opinions in the Veteran’s claims file which counter the findings made from the September 2020 VA examination, nor are there other positive etiological opinions available. As such, the Board finds that the Veteran’s has not met the third criteria for entitlement to service connection on either a direct or secondary basis. 38 C.F.R. §§ 3.303, 3.310. With respect to service connection on a presumptive basis, there is no indication that hypertension was diagnosed in service, nor was it diagnosed within the year following service. In fact, the first evidence of hypertension within the Veteran’s claims file is almost twenty years after the Veteran was separated from active duty. Likewise, continuity of symptomatology can also therefore not be established. As such, the Veteran has not met the third and final criteria for entitlement to service connection under the presumptive theory. 38 C.F.R. §§ 3.303, 3.307, 3.309. For the foregoing reasons, the Board concludes that the claim of entitlement to service connection for hypertension, to include as due to service-connected other specified trauma and stressor related disorder must be denied. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.