Citation Nr: 21004834 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-32 486 DATE: January 28, 2021 ORDER Entitlement to service connection for hypertension, including as secondary to service-connected residuals of a brain tumor, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's hypertension began during active service, manifest to a compensable degree within one year of discharge, or is otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C. § § 1110, 1131, 5107; 38 C.F.R. § § 3.102, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1975 to September 1978 and from May 1979 to May 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Additionally, it is valuable to note that the Veteran has already been found to be 100 percent disabled by VA and was granted entitlement to a total disability rating based on individual unemployability (TDIU), effective July 9, 2013. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Additionally, service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § § 1101, 1112; 38 C.F.R. § § 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term “chronic disease” refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was “noted” during service; (2) post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1340. If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed.” Walker at 1336; 38 C.F.R. § 3.303(b). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); Ward v. Wilkie, 31 Vet. App. 233 (2019) (holding that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability)). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability. Degmetich v. Brown, 104 F. 3d 1328 (1997). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In determining whether service connection is warranted for a disability, 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 (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. Entitlement to service connection for hypertension, including as secondary to service-connected residuals of a brain tumor. The Veteran contends that his hypertension had its onset during active service or is related to his service-connected residuals of a brain tumor. The Veteran's service treatment records are silent as to a diagnosis for, treatment for, symptoms of, or complaints of hypertension. Upon examination at separation from service in 1994, the Veteran’s blood pressure was 110/70. The Veteran's post-service treatment records show that the Veteran was diagnosed with hypertension in June 2013 and was started on medication for hypertension in August 2013, more than 10 years after service. The associated treatment records indicated that a blood pressure differential was not due to a large vessel occlusion and noted that a CT angiogram showed some atherosclerotic disease. Nothing in the medical record suggests the disability was caused by a service-connected disability. As noted, hypertension is subject to presumptive service connection as a chronic disease. 38 U.S.C. § 1112 (a); 38 C.F.R. § § 3.307, 3.309(a). The record is clear, however, that the Veteran's hypertension was initially identified many years after active duty service. As there is no showing of hypertension in service or to a compensable degree in the year after service, presumptive service connection for hypertension as a chronic disease is not warranted. The Board understands the Veteran’s contentions, but not only do the service records not support this case, the post-service medical evidence clearly indicates a problem that began well after service with no connection to either service or a service-connected problem. The Veteran himself denied high or low blood pressure at his discharge. The Board has reviewed the Veteran’s statements carefully: There is no indication of any missing records that would indicate a connection between service, a service-connected problem, and this disability. All medical evidence in this case provides evidence against the claim, indicating a problem that developed well after service with no indication of a connection between a service-connected problem and the disability. This fact does not suggest that the Veteran is not disabled (he has a 100% disability evaluation and clearly has hypertension). The only question is causation of one of the Veteran’s problems. Nothing more. No etiological opinions or suggestions are contained in the record that relate the Veteran's hypertension to service or to his service-connected residuals of a brain tumor. Additionally, the Veteran's service and post-service treatment records indicate that his hypertension began many years after service in 1994. Here, there is no competent evidence of a nexus between service and the Veteran's hypertension. The only evidence of record in support of such a nexus is the Veteran's lay opinion his hypertension is related to service. To the extent the Veteran's statements are being offered to establish a nexus, such evidence fails because this determination is a complex medical matter beyond the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran has not been shown to possess specialized training sufficient to render such an opinion. Accordingly, the Veteran's assertions as to a relationship between his hypertension, diagnosed many years after service, and service are of little probative value. The Board acknowledges that the Veteran was not afforded a VA examination in connection with his claim for service connection for hypertension; however, the Board finds that no such development is warranted based upon the facts of this case. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The standards of McLendon are not met in this case as there is no evidence indicating that the Veteran's hypertension may be associated with service. Again, there is no competent and probative evidence to show that the Veteran had hypertension in service or within one year following discharge from service, or for many years after service. Moreover, there is no competent and probative evidence to show that the Veteran's hypertension is otherwise related to service. (Continued on the next page)   Given the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for a hypertension, including as secondary to service-connected residuals of a brain tumor, and that the claim must be denied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. VanValkenburg, 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.