Citation Nr: 21062246 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 19-15 750A DATE: October 6, 2021 ORDER Entitlement to service connection for hypertension is denied. REMANDED Entitlement to service connection for a dermatological disorder is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for a left shoulder disorder is remanded. FINDING OF FACT The Veteran's preexisting hypertension was not aggravated beyond its natural progression by active-duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from February 1974 to February 1978. The claims on appeal come before the Board on appeal of a January 2019 rating decision. By way of background, even though the Veteran initially requested a hearing before a Veterans Law Judge, see, e.g.: VA Form 9 (rec'd July 1, 2019); Hearing Request (Jan. 30, 2020), the Veteran later withdrew his hearing request. See Correspondence ( Apr. 28, 2021 ). The Board proceeded accordingly without a hearing. On April 30, 2021, the Board asserted jurisdiction of the Veteran's claims, and addressed whether jurisdiction is proper under the old Legacy system of appeals or else the updated system via the Appeals Modernization Act. The Board interpreted the Veteran's submissions as not clearly evincing a request to opt-into the new system; therefore, the appeal was adjudicated under the Legacy system. In this decision, some of the Veteran's claims were adjudicated on the merits; therefore, those respective claims are no longer in appellate status. Meanwhile, the Board remanded the four claims that are listed on the title page. After the AOJ undertook development as requested in the April 30, 2021 remand, the Veteran was issued a Supplemental Statement of the Case (SSOC) on August 1, 2021. See SSOC (Aug. 1, 2021). The Board concludes that it can only adjudicate the claim for hypertension at this time, because any further remand on this claim would unnecessarily impose additional burdens upon the Board with no reasonable possibility of any benefit flowing to the Veteran, see Soyini v. Derwinski, 1 Vet. App. 540 (1991). On the other hand, for the other three claims, the Board cannot escape the conclusion that because the Veteran has not yet been afforded substantial compliance with previous remand directives, to which he is entitled, see Stegall v. West, 11 Vet. App. 268, 271 (1998), the Board is precluded from issuing final determinations herein. As a result, these three claims must be remanded. The Board sincerely regrets additional delay that may be incurred by this subsequent remand. This appeal has been advanced on the Board's docket on account of sufficiently serious illness and good cause shown. 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for hypertension is denied. A veteran is presumed sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). To be "noted" within the meaning of the statute and regulation, the condition must be recorded in the entrance examination report. Id. When a preexisting injury or disease has been noted, the veteran cannot bring a claim for service connection for that disorder, but instead may file a claim for service-connected aggravation of that disorder. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The injury or disease will be considered 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 is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The application of the presumption of aggravation is not automatic, but first requires a showing by the veteran of a permanent worsening of a preexisting condition during the relevant period of service. See Hill v. McDonald, 28 Vet. App. 243, 253 (2016) (citing Wagner, 370 F.3d at 1096). Once aggravation has been demonstrated, the burden then shifts to VA to show by clear and unmistakable evidence that the aggravation was not causally related to service. It is not in serious dispute that the Veteran's hypertension clearly and unmistakably predates service, or else was noted upon entry. See STR (Jan. 11, 1974) ("occasional high blood pressure"); (Jan. 24, 1974) (rec'd Apr. 23, 1985) ("According to our records, this patient has not been treated in the office for asthma. However, he has been treated for hypertension."). As a result, the claim was remanded in April 2021 to further develop the claim under § 1153 only, because the Board previously determined that the presumption of soundness does not attach as to the disability of hypertension. Thus, the remaining inquiry in this case is whether (1) the Veteran's pre-existing hypertension increased in severity during service, and (2) if so, whether it is clear and unmistakable that the increase is due to the natural progression of the disease. 38 U.S.C. § 1153. After the April 2021 remand, the AOJ procured an etiological opinion as to whether it is clear and unmistakable that the Veteran's hypertension is no more severe than due to the natural progression of the disorder. The examiner concluded that the Veteran's current hypertension is indeed merely a reflection of the natural progression of the Veteran's preexisting disability. See C&P Exam ( July 28, 2021 ), supra, at Section III, Question No. 3C, Medical opinion 4 of 4. This conclusion is based upon the examiner's finding within the service treatment records that upon separation examination, the Veteran's blood pressure was not elevated. See STR ( Aug. 23, 1977 ) ("High blood pressure onset 1966, attributed to excessive worry, treated with medication, normal this exam."). The Board further notes in passing that the Veteran is not service connected for any other disorder; therefore, there is no viable theory of secondary service connection or secondary aggravation that could be considered. The Veteran is free to file such a claim if so desired. The Board concludes that the July 2021 opinion, as pertaining to this claim, is probative for being prepared by a skilled, neutral medical profession after a review of the relevant medical records and are supported by a complete rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (noting that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); Nieves Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470,71 (1993). Ultimately, there is no contrary medical opinion of record, and the Board also concludes that the most recent etiological opinion is pursuant to all remand directives, see Stegall, supra, and there is no reasonable possibility of any benefit that might be conferred after any further remand, see Soyini, supra. Ultimately, as recounted above, the Board has thoroughly reviewed the evidence of record and the Veteran's arguments, and while service connection is precluded for the preexisting hypertension, there is also no evidence of an in-service event, injury, or disease to counter the examiner's theory that aggravation beyond the natural progression of the disability is clearly and unmistakably not present. See Wagner v. Principi, supra; 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). Ultimately, the Veteran's claim for service connection for hypertension was remanded for an adequate opinion on aggravation, and one such was duly obtained and associated with the claims file for Board review. Accordingly, the preponderance of evidence is against a finding that the Veteran's pre-existing hypertension was aggravated by service. For the reasons above, the benefit of the doubt rule does not apply, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND 1. Entitlement to service connection for a dermatological disorder is remanded. A medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461. When the VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Furthermore, the Veteran is entitled to substantial compliance with all previous remand directives. Stegall v. West, supra. In this instance, the VA examiner stated that the dermatological disorder was clearly and unmistakably not worsened beyond the natural progression of the disease on the conclusion that there was no increase in severity of rashes, and the Veteran was not diagnosed with a skin condition during service. See C&P Exam ( July 28, 2021 ), supra, at Section III, Question No. 3C, Medical opinion 1 of 4. To the contrary, the Board cannot escape the conclusion that while the rash disorder appears to have only been noted upon entry as affecting the chest and back, see STR ( Jan. 25, 1974 ), at Question No. 74, the Veteran also manifested a "skin problem" on his hands and feet, see STR ( Apr. 6, 1977 ). While the Board cannot ascertain whether this is the same skin disorder manifesting in body parts other than the chest and back (or else an unrelated disorder separate from the one on appeal), the Board can conclude that the opinion is incorrect for stating that the Veteran was never diagnosed with a dermatological disorder while in service. The Board concludes that it cannot make an informed decision in the adjudication of this claim; therefore, a remand is required. 2. Entitlement to service connection for a lumbar spine disorder is remanded. A medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461. When the VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Furthermore, the Veteran is entitled to substantial compliance with all previous remand directives. Stegall v. West, supra. In this instance, the VA examiner stated that the Veteran's current lumbar spine disorder is not at least 50 percent attributable to active-duty service because "There is no evidence that veteran complained of any back conditions during service. Separation exam dated 8/23/1977 noted veteran with recurrent back pain, currently asymptomatic, with onset of 1969 before active service." See C&P Exam ( July 28, 2021 ), supra, at Section III, Question No. 3C, Medical opinion 3 of 4. While the Board acknowledges that the Veteran's lumbar spine may have been asymptomatic upon separation examination, the evidence of record demonstrates that the Veteran sought treatment for back pain on numerous occasions. See, e.g.: STR (Apr. 6, 1977; Apr. 27, 1977; May 3, 1977; Aug. 23, 1977). While the Board cannot ascertain whether the Veteran's current lumbar spine disorder is the same one for which he sought medical treatment in service, the Board can conclude that the opinion is incorrect for stating that the Veteran was never seen for a spine disorder while in service. The Board concludes that it cannot make an informed decision in the adjudication of this claim; therefore, a remand is required. 3. Entitlement to service connection for a left shoulder disorder is remanded. The Veteran is entitled to substantial compliance with all previous remand directives. Stegall v. West, supra. Upon remand in April 2021, the future examiner was specifically instructed that "while the absence of in-service complaints or treatment may be considered, the absence of such should not form the sole basis of a negative opinion." See BVA Remand (Apr. 30, 2021), at Pages 15-6. See also Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Nevertheless, the VA examiner stated that the Veteran's current left shoulder disorder is not at least 50 percent attributable to active-duty service because "There is no evidence that veteran complained of any left shoulder condition during service. Separation exam dated 8/23/1977 noted veteran denying any painful shoulder." See C&P Exam ( July 28, 2021 ), supra, at Section III, Question No. 3C, Medical opinion 3 of 4. To the extent that this examiner appears to have relied on absence of earlier evidence of shoulder pain from the record, this opinion is inadequate. Barr v. Nicholson, supra; Buchanan v. Nicholson, supra; Jandreau v. Nicholson, supra. Additionally, this opinion is also not fully supported by a well-reasoned medical explanation. See Nieves-Rodriguez v. Peake, supra; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis the Board can consider and weight against contrary opinion"). The July 2021 opinion is only a conclusory opinion with no supporting rationale; therefore, its probative weight and inherent value is diminished. Finally, as stated earlier, the negative nexus opinion appears to be solely based upon an absence of in-service complaints and treatment, which is contrary to what was ordered by the previous remand directives. See Stegall, supra. As a result, the Veteran has not been afforded substantial compliance with the remand directives as pertaining to this claim; therefore, this claim must be remanded. The matters are REMANDED for the following action: 1. The AOJ should return the Veteran's claims file to the July 2021 examiner, or else if they are not available, to a similarly qualified VA examiner. Whether any further in-person examinations are required is left to the discretion of the AOJ; however, the AOJ should be advised that the Veteran has a terminal diagnosis, and the matter is advanced on the docket. With respect to the skin disorder, the examiner is asked to address the following: (a.) The relevance (or lack thereof) of the Veteran's April 1977 in-service medical treatment for a skin problem on the hands and feet. For reference, the Veteran's skin disorder is only clearly and unmistakably noted upon entry as manifesting on the chest and back. (b.) Whether the diagnosed skin disorder, which clearly and unmistakably existed prior to the Veteran's entrance onto active duty, clearly and unmistakably did not undergo an increase in severity during service or, if there was an increase, whether it was in the natural progression of the disease. With respect to the lumbar spine disorder, the examiner is asked to address the following: (c.) Perform diagnostic testing, to include x-rays. Then list all diagnoses pertaining to the Veteran's low back/lumbar spine. (d.) Please address the relevance (or lack thereof) of the following notations within the Veteran's service treatment records: i. A complaint of back pain dated April 6, 1977; ii. A complaint of lower back pain dated April 27, 1977; iii. A notation of an acute lumbar strain dated May 3, 1977; iv. The Veteran's acknowledgement of a history of recurrent back pain upon Report of Medical History as conducted on August 23, 1977. If the examiner does not find a current low back/lumbar spine disability, he/she must specifically indicate whether there is any functional impairment of earning capacity due to complaints/symptoms related to the low back. (e.) For each diagnosis or functional impairment identified, state whether it is as least as likely as not (50 percent probability or greater) that the Veteran's low back disorder (or functional impairment) was incurred in service or is related to service. In providing the requested opinion, the examiner must address the Veteran's lay statements regarding onset, in-service injury, and continuity of symptomatology since service. Additionally, while the absence of in-service complaints or treatment may be considered, the absence of such should not form the sole basis of a negative opinion. 2. Schedule the Veteran for an examination with an appropriate examiner to determine the nature and etiology of any diagnosed left shoulder disorder, to include pain. The examiner should review the claims file in conjunction with the examination, giving attention to lay assertions and pertinent medical evidence. After examining the Veteran and reviewing the claims file, the examiner should respond to the following: (a.) Perform diagnostic testing, to include x-rays. Then list all diagnoses pertaining to the Veteran's left shoulder. (b.) If the examiner does not find a current left shoulder disability, he/she must specifically indicate whether there is any functional impairment of earning capacity due to complaints/symptoms related to the left shoulder. (c.) For each diagnosis or functional impairment identified, state whether it is as least as likely as not (50 percent probability or greater) that the Veteran's left shoulder disorder (or functional impairment) was incurred in service or is related to service. In providing the requested opinion, the examiner must address the Veteran's lay statements regarding onset, in-service injury, and continuity of symptomatology since service. Additionally, while the absence of in-service complaints or treatment may be considered, the absence of such should not form the sole basis of a negative opinion. D. SMART Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.