Citation Nr: 21061318 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 17-36 373A DATE: October 1, 2021 ORDER The application to reopen the claim of service connection for hypertension is granted. Service connection for hypertension is denied. FINDINGS OF FACT 1. In May 1994 rating decision, the Regional Office denied the claim of service connection for hypertension. The Veteran did not timely appeal this decision nor did he submit new and material evidence within the one-year period. 2. Evidence received since the May 1994 decision relates to a previously unestablished fact necessary to substantiate the claim. 3. High blood pressure was noted on the Veteran's entrance medical examination. It did not increase in severity during service. CONCLUSIONS OF LAW 1. The May 1994 rating decision that denied service connection for hypertension is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence received since the May 1994 rating decision is new and material and the claim of service connection for hypertension is reopened. 38 U.S.C. § 5107; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1111, 1112, 1113, 1131, 1137, 1153, 5107; 38 C.F.R. §§ 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1991 to February 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Neither the Veteran nor his attorney have 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. The application to reopen the claim of service connection for hypertension. The RO denied the Veteran's claim of service connection for hypertension in a May 1994 rating decision, finding that hypertension was noted on the entrance examination and the separation examination showed blood pressure was within normal limits. The March 1994 VA examiner found that the Veteran's blood pressure was labile (i.e. variable). The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1993). The evidence received since the May 1994 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156 (2021). For example, a September 2012 VA treatment record shows a diagnosis of essential hypertension, poorly controlled. This new evidence addresses the reason for the previous denial; that is, aggravation of a pre-existing disability, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits 2. Service connection for hypertension. The Veteran seeks service connection for hypertension. If a disability is noted on a Veteran's entrance examination, the Veteran cannot bring a claim for service incurrence for that disorder, but he may bring a claim for service-connected aggravation of that disorder. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Paulson v. Brown, 7 Vet. App. 466, 468 (1995). In that case, the provisions of 38 U.S.C. § 1153 and 38 C.F.R. § 3.306 apply. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Service connection is warranted if the preexisting disorder was aggravated by a veteran's active service. A preexisting injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). In such a case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in disability during service. If the presumption of aggravation attaches, the burden shifts to the government to show by clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. Id; see also 38 C.F.R. § 3.306(b). 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). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). For VA compensation purposes, the term hypertension means that diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that systolic blood pressure is predominantly 160mm. or greater with diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. The Veteran's October 1990 entrance examination reveals a notation of disqualification for service, and lists blood pressures as 142/96, 150/96, and 154/102. Blood pressures taken on October 30, 1990, several weeks after the initial examination, show blood pressures of 164/96, 160/90, and 158/88. This was reported on a continuation sheet to the entrance examination report. The entrance examination also noted that in January 1991, the Veteran was afforded a waiver after blood pressure readings from a private physician. The Veteran's blood pressure was measured by a private physician on October 12, 1990. The pressure readings were 132/80, 140/80, and 142/80. The Veteran had high blood pressure prior to service. Therefore 38 U.S.C. § 1153 and 38 C.F.R. § 3.306 apply. During service, the Veteran's blood pressure was taken on numerous occasions. His blood pressure fluctuated frequently between diastolic pressure of 90mm. and greater to diastolic pressure lower than 90mm. This was consistent with the blood pressure readings prior to service as noted on his entrance examination. From June 1992 to July 1993, the Veteran's blood pressure was below the VA definition of high blood pressure. On the report of medical examination at separation, the Veteran's blood pressure was 120/80. The Board finds this is clear and unmistakable evidence that the Veteran's high blood pressure at entrance to service was not permanently worsened by service. First, there is no permanent increase in severity during service. At entrance to service, the Veteran's blood pressure was high, but fluctuated between high and normal. During service, the same thing can be seen. Additionally, for the last year of service, his blood pressure was normal and that is reflected on his separation examination. Accordingly, there was no increase in severity during service. At best, he had a temporary flare-up, and at worst, his blood pressure continued the pattern of fluctuation that was seen prior to service. Furthermore, the December 2019 VA examiner found hypertension was clearly and unmistakably not aggravated by service. The rationale was the "Veteran with blood pressure of 130/85 to 90 in clinic this date. Currently taking only one medication to control blood pressure. Though higher than ideal, [the] veteran's blood pressure is controlled on a single medication which is as is what clinicians hope is possible. [The] Veteran's blood pressure is not 'aggravated beyond its natural progression,' rather well controlled with blood pressure medication which is better than expected outcome." The Board may consider the ameliorative effects of blood pressure medication in its analysis as the plain language of Diagnostic Code 7101 contemplates the effects of medications. McCarroll v. McDonald, 28 Vet. App. 267, 273 (2016). Here, the examiner is essentially reporting that there was no permanent worsening because the Veteran's blood pressure is controlled. As the most competent and credible evidence of record does not show an increase in the severity of hypertension during service. As such, a discussion of clear and unmistakable evidence to rebut the presumption of aggravation is not required. Wagner, 370 F.3d at 1096. Because the Veteran's pre-existing hypertension was not aggravated by military service entitlement to service connection must be denied. The Veteran's blood pressures were high within a year of separation. Specifically, In the March 1994 VA examination, the Veteran's blood pressure was 150/100, 140/90, 135/85, 160/60 and 150/95. Nonetheless, the pressure readings after service are not relevant in cases where, as here, the disability preexisted service and did not increase in severity during service. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Rocktashel, 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.