Citation Nr: 21062819 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 18-13 862 DATE: October 12, 2021 ORDER Service connection for hypertension is denied. REMANDED Entitlement to a rating in excess of 30 percent for bilateral plantar fasciitis is remanded. Entitlement to a rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is remanded. FINDING OF FACT None of the probative evidence of record indicates that the Veteran's currently diagnosed hypertension may be associated with service. CONCLUSION OF LAW The criteria for an award of service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from July 1992 to August 1994 and from June 1997 to May 2006. His decorations include the Parachutist Badge and the Aviator Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Service connection for hypertension The Veteran contends that his hypertension was incurred in or caused by service. Specifically, he testified at the June 2021 Board hearing that he felt like there were times he had high blood pressure readings during service. He also testified that he had a high stress job during service and believed that in-service stress may have been a contributing factor to his hypertension. Finally, he testified that he did not remember whether he was diagnosed with hypertension during service, but he thought he was diagnosed while on terminal leave. Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseasesincluding hypertensionto a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). As an initial matter, the Board notes that, for VA purposes, hypertension means that the diastolic pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160 or greater with a diastolic pressure of less than 90. See 38 C.F.R. § 4.104, Diagnostic Code 7101. As such, hypertension requires specific medical testing to diagnose and is thus not a disability capable of lay observation. Indeed, even a physician is unable to diagnose hypertension without conducting diagnostic testing. The Veteran's VA treatment records demonstrate that he has a current diagnosis of hypertension. The first element of service connection has therefore been established. Regarding an in-service event, the Board has carefully reviewed the Veteran's service treatment records (STRs). They are silent, however, for complaints of, treatment for, or a diagnosis of hypertension. They are also silent for any blood pressure readings which could constitute hypertension for VA purposes. At the Veteran's entrance into service in March 1992, his blood pressure was 104/68; in September 1993, it was 121/86. A March 1994 STR shows the Veteran's highest blood pressure reading in service, which was 145/74. In June 1994, however, it was 114/80; in May 1997, it was 136/84; in February 1998, it was 136/76; in December 1999, it was 134/70; in May 2000, it was 108/74; in March 2001, it was 128/68; in June 2002, it was 121/81; in May 2003, it was 134/86; in March 2004, it was 134/72; in December 2005, it was 132/71; and at the time of the Veteran's separation from service in May 2006 it was 127/76. Nothing was noted regarding hypertension at the Veteran's separation examination, or at any other time during service. Turning to post-service treatment records, the Board notes that the claims file indicates that the Veteran was not diagnosed with hypertension until September 2015 nearly 10 years after his separation from service. Blood pressure readings in September 2011 (110/80), January 2012 (130/90), and May 2012 (120/90), reflect that hypertension for VA purposes was not documented for a period of years after service. The September 2015 VA treatment record also indicates that that was the first occasion on which the Veteran was prescribed medication for hypertension. The evidence outlined above demonstrates that the Veteran was not diagnosed with hypertension during his active service. There is also no evidence to suggest that he developed it within the first post-service year. Thus, he is not entitled to an award of service connection pursuant to the presumptive provisions of 38 C.F.R. §§ 3.307, 3.309(a). In fact, as noted, the first competent medical evidence of the disability is years after his separation from service. The Board has carefully considered the Veteran's lay statements with respect to in-service onset, to the effect that the high stress of his military duties contributed to his hypertension, and that he believes that he might have been diagnosed with hypertension within one year of discharge. However, his statements in that regard are inconsistent with the competent and probative medical evidence of record. While the Veteran is capable to report things he has personally observed or experienced, there is nothing in the claims file to show that he has the requisite knowledge, skill, experience, training, or education to render a medical opinion regarding the diagnosis, onset, or etiology of hypertension. Consequently, his statements in that regard cannot be afforded any probative weight The Board acknowledges that the Veteran has not been afforded a VA examination in connection with his claim. However, in the absence of any evidence of an in-service injury or disease, or any probative evidence indicating that his current hypertension may be associated with service, a VA examination is not required. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In view of the foregoing, the Board must conclude that the preponderance of the evidence is against the claim. The appeal of this issue is denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for bilateral plantar fasciitis is remanded. In its October 2016 rating decision, the RO increased the Veteran's rating for bilateral plantar fasciitis from 0 (zero) to 30 percent pursuant to Diagnostic Code 5276. The Veteran seeks a higher rating. He also contended at the June 2021 hearing that the disability had worsened since the most recent VA examination in August 2016. As noted, the Veteran's feet were last examined for VA compensation purposes in August 2016. Since that time, changes have been made to the criteria for rating plantar fasciitis. Specifically, the condition is now rated under DC 5269. Under DC 5269, plantar fasciitis is evaluated as 30 percent disabling if it is bilateral and no relief is obtained from both non-surgical and surgical treatment. A 20 percent rating is warranted if the condition is unilateral and no relief is obtained from both non-surgical and surgical treatment. If a veteran has been recommended for surgical intervention, but is not a surgical candidate, the condition is to be evaluated under the 20 or 30 percent criteria, as applicable. Otherwise, a 10 percent rating is warranted, whether the condition is unilateral or bilateral. A 40 percent rating is warranted for actual loss of use of the foot. After review of all of the lay and medical evidence of record, the Board finds that the evidence is inadequate for determining the appropriate rating to be assigned under the new criteria. A new examination is required. The Board finds further that a new examination is warranted given the Veteran's allegation of worsening. Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination). Updated records of VA treatment should also be procured. Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). 2. Entitlement to a rating in excess of 10 percent for GERD is remanded. In its October 2016 rating decision, the RO increased the rating for the Veteran's GERD from 0 (zero) to 10 percent pursuant to Diagnostic Code 7399-7346. He seeks a higher rating. At the outset, the Board notes that a VA treatment record indicates that the Veteran has been taking omeprazole for GERD since at least April 2013, which is prior to the period on appeal. The most recent VA treatment records in the file indicate that he still takes the medication and has done so throughout the entire appeal period. The Veteran was afforded a VA examination in connection with his claim in August 2016. The examiner noted that the Veteran took omeprazole on a continuous basis. It does not appear from the August 2016 VA examination report that the examiner discounted the ameliorative effects of medication when assessing the severity of the Veteran's GERD symptoms. Significantly, caselaw no longer permits those effects to be taken into account when rating conditions such as GERD. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) (a higher rating may not be denied on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria); 38 C.F.R. § 4.114, Diagnostic Code 7346 (2013) (containing no reference to the effects of medication). Under the circumstances, the Board finds that an attempt to obtain a retrospective medical opinion on the matter is warranted. These matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for an examination of his feet. The examiner should provide a full description of the functional impairments associated with the Veteran's bilateral plantar fasciitis, particularly as those impairments relate to the new rating criteria set out at DC 5269. 3. Also arrange to provide the record on appeal to the VA examiner who evaluated the Veteran in August 2016 for purposes of assessing the severity of his GERD. After reviewing the record, the examiner should prepare a supplemental report providing a retrospective opinion as to whether, when the ameliorative effects of medication are disregarded, it is at least as likely as not (i.e., it is 50 percent or more probable) that, for any portion of the appeal period (from July 2015 (one year prior to when he filed his claim for an increased rating) to the present), the Veteran's GERD would have been manifested by symptoms of persistently recurrent epigastric distress, dysphagia, pyrosis, regurgitation, substernal or arm or shoulder pain, vomiting, material weight loss, hematemesis, melena, moderate anemia, or other symptom combinations productive of considerable or severe impairment of health. If the examiner cannot provide an opinion without resort to speculation, he must provide an explanation as why that is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of the need for additional information, or whether he has exhausted the limits of current medical knowledge in providing an answer. If the August 2016 VA examiner is no longer employed by VA or is otherwise unable to provide the opinion(s) requested, arrange to obtain the requested information from another qualified examiner. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.