Citation Nr: 21002579 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 16-47 276 DATE: January 14, 2021 ORDER Service connection for hypertension is denied. FINDING OF FACT The weight of the competent and probative evidence is against a finding that the Veteran’s current hypertension is related to an event in service or secondary to a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1977 to April 1999. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified, sitting in San Diego, California, before the undersigned via a videoconference hearing. A transcript of the hearing has been associated with the virtual file and reviewed. This case was previously before the Board in December 2019, at which time the Board remanded the matter for further development, to include updated records and a VA examination and medical opinion. As the requested development has been substantially completed, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements above is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Entitlement to service connection for hypertension. The Veteran contends that his hypertension condition is due to service. Alternatively, the Veteran contends that his hypertension is proximately due to or aggravated by his service-connected sleep apnea disability. The service treatment records reveal an elevated blood pressure reading in November 1992 (20/92), but otherwise does not indicate that that the Veteran was diagnosed with or treated for hypertension. 09/07/2013, STR – Medical, page 98; 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). The VA treatment records reveal intermittently elevated blood pressure beginning within a year after separation from service and that the Veteran has family history of high blood pressure. See 05/24/2000, Medical Treatment Record – Government Facility, pages 2 & 11; see also 02/17/2001, VA Examination, page 10. In April 2013, May 2014, and October 2016, medical opinions were provided by the same private clinician, Dr. C.L.S., who is a specialist in sleep medicine. The clinician indicated that the Veteran had an untreated sleep apnea condition while in service. The medical opinions further indicated that untreated sleep apnea could have caused the Veteran to develop hypertension. 08/21/2013, Medical Treatment Record Non-Government Facility; 04/30/2015, Medical Treatment Record Non-Government Facility; 11/09/2016, Medical Treatment Record Government Facility. A September 2016 VA examination noted a current diagnosis of hypertension. As such, there is competent evidence of a current hypertension disability. Regarding a nexus to service, the examiner opined that the hypertension is less likely than not related to his active service. Specifically, the examiner remarked that the Veteran only had a single isolated elevated blood pressure reading while in service. 09/12/2016, C&P Exam. During a September 2019 Board hearing, the Veteran testified that had a high blood pressure reading while in service. Additionally, the Veteran reportedly experienced symptoms of high blood pressure, but did not report them while in active service because he believed that doing so would negatively impact his military career. The Veteran also suggested that he attempted to control his high blood pressure with over-the-counter medication during his period of active service. 09/20/2019, Hearing Transcript.   A December 2019 Board remand found the September 2016 VA examination to be incomplete because the examiner did not provide an opinion regarding the etiology of the hypertension, or whether hypertension developed after separation due to his active service. The Board remanded the claim and directed the Agency of Original Jurisdiction to schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s hypertension. The examiner was directed to provide opinions as to whether hypertension is at least as likely as not related to an in-service injury, event, or disease, as well as whether any current hypertension diagnosis is at least as likely as not proximately due to a service-connected disability or aggravated beyond its natural progression by a service-connected disability, including sleep apnea. 12/19/2019, Remand BVA or CAVC. A March 2020 VA examiner opined that the Veteran’s hypertension is less likely than not related to his active service. Specifically, the examiner indicated that a diagnosis of hypertension requires persistently and chronically elevated blood pressure within a hypertensive range. This requires elevated blood pressure to be taken on at least two or three separate visits, which was never demonstrated during the Veteran’s period of active service. Although the Veteran had a single elevated blood pressure reading in November 1992, the Veteran also had a normal blood pressure reading when the test was repeated that same day. Additionally, the examiner considered the Veteran’s treatment records revealing intermittently elevated blood pressure from 2000 to 2006, during which time the Veteran still did not meet the diagnostic criteria for hypertension. Moreover, the examiner noted that the Veteran has significant risk factors for hypertension, including advancing age and positive family history. Based on a review of the Veteran’s medical records and known inherent risk factors, the Veteran most likely developed hypertension due to advancing age and significant family history. And, a delayed onset and manifestation of hypertension several years after an isolated elevated blood pressure reading is not consistent with the medical understanding of the pathology, pathogenesis, and natural history of hypertension by this VA staff physician. Furthermore, the March 2020 VA examiner opined that the Veteran’s hypertension is less likely than not proximately due to or the result of a service-connected disability. Specifically, the examiner indicated that the Veteran’s hypertension is most likely not a secondary condition, but rather a primary condition due to his inherent risk factors. Furthermore, the examiner considered peer-reviewed medical literature, which do not consistently or confidently assign sleep apnea as a significant risk factor for the development of hypertension, even though both disorders commonly co-exist. The examiner could not determine a baseline of severity of hypertension prior to a possible aggravation by a service-connected condition. And, the examiner opined that, regardless of an established baseline, the Veteran’s hypertension is less likely than not aggravated beyond its natural progression by a service-connected disability. Specifically, the Veteran’s hypertension appears to be progressing naturally and without any aggravation. The Veteran is currently taking one anti-hypertensive medication for treatment, which is common. In fact, most individuals normally require two anti-hypertensive medications to keep hypertension under control. Therefore, the examiner indicated that the Veteran’s hypertension has not been aggravated beyond its natural progression. 03/09/2020, C&P Exam; 03/09/2020, C&P Exam (medical opinion). Upon consideration of the entire record, the Board finds that the weight of the competent and probative evidence is against finding that the Veteran’s current hypertension condition is due to a disease or injury in service. The Board places much probative weight on the on the March 2020 VA examination, as the examiner considered the Veteran’s relevant medical history to include his service records, as well as VA and private treatment records. Additionally, the VA staff physician provided a thorough rationale that included medical literature and the Veteran’s inherent risk factors for hypertension. Specifically, the examiner addressed the criteria for a diagnosis of hypertension with specificity and indicated that the Veteran had not met the diagnostic criteria for hypertension until several years after separation from active service. The examiner added that the Veteran’s hypertension is most likely developed hypertension due to advancing age and significant family history. The Board acknowledges that the Veteran believes that the onset of his hypertension occurred during service and that he attempted to control his high blood pressure with over-the-counter medication. The Veteran in this case was not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the cardiovascular system. Therefore, it was outside the competence of the Veteran (or the appellant) in this case because the record does not show that either of them has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). As such, the Veteran’s statements regarding etiology are not competent and lack weight. Consequently, the Board gives more probative weight to the March 2020 VA examination and medical opinion, which shows adequate consideration of the relevant evidence and were provided by a competent medical professional. Therefore, the preponderance of the evidence is against the claim and service connection is denied. Moreover, upon consideration of the entire record, the Board finds that the weight of the competent and probative evidence is against finding that the Veteran’s current hypertension condition is proximately due to or aggravated by a service-connected disability, to include sleep apnea. Again, the Board places much probative weight on the on the March 2020 VA examination, which comprehensively considered the Veteran’s medical history and treatment records to determine that his hypertension is a primary condition due to his inherent risk factors. The examiner also considered peer-reviewed medical literature to conclude that the Veteran’s hypertension has not been aggravated beyond its natural progression and that sleep apnea is not a significant risk factor for the development of hypertension. The Board acknowledges the April 2013, May 2014, and October 2016 private medical opinions indicating that untreated sleep apnea could have caused the Veteran to develop hypertension. However, the clinician does not specifically provide an opinion as to whether the Veteran’s hypertension is at least as likely not proximately due to or aggravated by sleep apnea. And, the clinician does not otherwise provide a rationale in support of the medical opinion. For these reason, the Board place less weight on the medical opinions provided by Dr. C.L.S. Therefore, the preponderance of the evidence is against the claim and service connection is denied. The Board emphasizes that it is sympathetic to this appellant and is grateful for the Veteran’s over 20 years of honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). As the preponderance of the evidence is against the Veteran’s claim, there is no reasonable doubt to resolve in his favor. Therefore, the service connection for hypertension is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Han 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.