Citation Nr: 21063010 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-41 310 DATE: October 12, 2021 ORDER Entitlement to service connection for hypertension, to include as due to service-connected diabetes mellitus type II is denied. FINDING OF FACT The weight of the competent and credible evidence is against finding that the Veteran has had a diagnosis of hypertension, nor does the record support a finding that his blood pressure has been continuously elevated since discharge from service; and that it is not etiologically secondary (caused or aggravated) to service connected diabetes mellitus type II. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from December 1988 to September 1994 and in the U.S. Navy from January 2006 to July 2013. This matter comes before the Board of Veterans' Appeal (Board) from a March 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Previously, the claim was before the Board in April 2019 and was remanded for additional development. There has been substantial compliance with the directives, and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Previously, entitlement to service connection for obstructive sleep apnea was before the Board in April 2019, and during the course of the appeal in a December 2020 rating decision service connection was granted for obstructive sleep apnea effective August 25, 2016. As this represents a full grant of benefits sought on appeal this issue is no longer before the Board. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran must show: "(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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 Fed. Cir. (2004). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (a). Any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. 38 C.F.R. § 3.310 (b). Entitlement to service connection for hypertension, to include as due to service-connected diabetes mellitus type II The Veteran contends that service connection is warranted for hypertension as due to his service-connected diabetes mellitus type II. The Veteran reports that his hypertension is a complication of his service-connected diabetes mellitus type II and should be separately rated. The Veteran is competent to describe his current symptoms, in-service events, and the occurrence of ongoing symptoms. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The question for the Board is whether the Veteran has a hypertension disability that began during service, manifested during the applicable presumptive period, is at least as likely as not caused by an in-service injury or disease; or is caused or aggravated by his service connected diabetes mellitus type II. Blood pressure measurements are expressed as diastolic divided by systolic pressure in mmHg. For VA compensation purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 or greater; and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 or greater with diastolic blood pressure less than 90. 38 C.F.R. § 4.104, Diagnostic Code 7101. The Board concludes that the Veteran does not have a current hypertension disability for VA purposes and has not had one at any time during the pendency of the claim or recent to the filing of the claim. See 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); McKinney v. McDonald, 28 Vet. App. 15 (2016); 38 C.F.R. § 3.303(a), (d). Under 38 U.S.C. § 1110, there must be a disability due to an identified personal injury suffered or disease or injury, contracted in-service. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). Herein, even if the Board considered the Veteran's reports of several instances of elevated blood pressure readings and symptoms attributed to his diabetes mellitus type II to broadly encompass general reports of pain, these are already contemplated by his current service-connected diabetes mellitus type II. Here there is no functional limitation, beyond what has already been contemplated by the Veteran's service-connected diabetes mellitus type II. Further, not all pain results in a disability, as in here, or rises to the level of impairment of working ability. The Veteran's service treatment records (STRs) have been associated with the claims file. During the Veteran's first period of active service at separation in July 1994 on the report of medical examination clinical evaluation was normal with a blood pressure (BP) reading of 123/76. At separation on the July 1994 report of medical history the Veteran denied high or low blood pressure. STRs note a general family history of hypertension. STRs are silent for symptoms, diagnoses, or treatment for hypertension during both periods of active service. In November 2007, the Veteran had a BP reading of 149/92. In an August 2008 periodic report of medical history, the Veteran denied high or low blood pressure. The Board notes several instances of elevated blood pressure readings during service. An October 2010 STR noted BP reading of 146/90. A November 2012 STR noted BP of 148/98. In addition, the Board also notes there were many more instances of blood pressure readings within normal limits. In light of the several instances of elevated blood pressure readings in-service the Board finds an in-service event but does not find evidence of a hypertension disability for VA purposes in-service. The question for the Board is whether the Veteran has a current hypertension disability for VA purposes, then if so, if such is related to an in-service event, injury or illness. The Veteran is currently service connected, or diabetes mellitus type II rated as 20 percent disabling from July 4, 2013 forward and as 60 percent disabling from August 25, 2016 forward. Pursuant to Diagnostic Code 7913, Note (1)-pertaining to diabetes mellitus-complications are rated as part of the diabetic process unless they are compensably disabling, in which case they are rated separately. This current issue arises from the Veteran's claims that service connection for hypertension is warranted as such as a complication and secondary to his diabetes mellitus type II and is being considered as a separate disability. 38 C.F.R. § 4.14. A May 2013 Diabetes Mellitus Disability Benefits Questionnaire (DBQ) has been associated with the claims file and noted blood pressure readings of 129/92, 148/98 and 130/100. The examiner noted no cardiovascular condition including hypertension, and that the Veteran did not have any recognized complications of diabetes mellitus type II. A May 2014 Diabetes Mellitus DBQ has been associated with the claims file. The DBQ notes hypertension as a complication of diabetes. However, no additional information was provided as to the diagnosis of hypertension, or the information used to make this determination. A January 2017 Diabetes Mellitus DBQ has been associated with the claims file. The DBQ noted that diabetic nephropathy or renal dysfunction was not caused by diabetes mellitus. Hypertension was not noted to be due to the Veteran's diabetes mellitus. The examiner noted that three blood pressure readings were 126/78, 128/82 and 126/76. A May 2020 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance DBQ has been associated with the claims file. The DBQ notes hypertension and on examination blood pressure was 144/85. The Veteran was afforded a VA examination in August 2020. The Veteran reported that he was told he had hypertension in 2013. The Veteran reports that he was started on lisinopril but never refilled the medication. At times the Veteran reports intermittent elevations of his blood pressure but not consistent enough to restart medication. The examiner noted a thorough review of the Veteran's claims file and treatment records and lay statements. The examiner noted that the Veteran does not currently have a diagnosis of hypertension or isolated systolic hypertension based on VA criteria. The examiner noted that the Veteran's treatment plan does not include taking continuous medication for hypertension or isolated systolic hypertension. The examiner noted that the Veteran does not have a history of a diastolic blood pressure elevated to predominately 100 or more. The examiner noted a review of current blood pressure readings noted BP 144/85 in April 2020, BP 142/99 in January 2020 and BP 139/81 in September 2019. The examiner noted that the Veteran does not have any other pertinent physical findings, complications or conditions related to hypertension and as the Veteran does not currently have hypertension such does not impact his ability to work. The examiner noted that based on a review of the Veteran's claims file and examination that it is less likely than not that the Veteran has a diagnosis of hypertension that was incurred in or caused by service. The examiner noted that the Veteran does not have a diagnosis of hypertension that meets the VA criteria of diastolic BP predominately over 90 or an isolated systolic BP predominantly over 160. Two months prior to separation in May 2013 BP was noted to be 134/86, 114/78 and 108/77. The examiner noted no diagnosis of hypertension or use of prescribed anti-hypertensive agents in the Veteran's STRs. The examiner noted that an extensive review of the Veteran's post-service treatment records shows more than 11 diastolic BPs less to 90 and only 7 greater than 90, with more than 60 percent being normal. There were no systolic blood pressures greater than 160. While the Veteran was prescribed antihypertensive these were only taken for several weeks in 2013. As such the examiner found that the Veteran does not meet VA criteria for hypertension during or after military service. Further, the examiner found that based on an extensive review of the claims file and examination it is less likely than not that the Veteran's hypertension was proximately due to or the result of or aggravated by his diabetes mellitus type II. The examiner noted that the Veteran does not have hypertension as per the VA criteria. Further, he has normal renal function, in April 2013 his creatinine (CR) was .75, estimated glomerular filtration rate test (EGFR) was 121, and in May 2020 his CR was .77 and EGFR was 114, without proteinuria. The examiner noted that abnormal renal function is a perquisite to establish hypertension due to diabetes mellitus type II. There is no evidence of abnormal renal function, and thus the examiner noted that hypertension due to diabetes mellitus type II is not found. In addition, the Veteran was afforded a supplemental VA opinion in October 2020. The examiner noted review of the prior DBQ suggesting that hypertension is a diabetic complication. However, the VA examiner found that this conclusion that the Veteran's hypertension is a diabetic conclusion has no standing. The VA examiner noted that this DBQ were not completed by a C&P examiner who would be expected to be familiar with VA criteria that must be fulfilled to conclude that hypertension is secondary to diabetes mellitus type II. Specifically, the May 2014 DBQ failed to fully address section II, which notes diabetic renal disease. The examiner noted that had the Veteran's primary care VA provider who completed the DBQ looked at Section III, she would have been promoted to review the CMC labs from May 5, 2014 which showed a creatinine of .77. The VA examiner noted that such is inconsistent with a finding that hypertension is present and a diabetic complication. Then a January 2017 DBQ was completed by a contract QTC C&P examiner which does not identify hypertension as a complication of the Veteran's diabetes. The laboratory findings associated with this examination noted creatinine of .75 which was noted to be normal. As the creatinine obtained by the QTC examiner was normal and it would be appropriate that the examiner did not specifically confirm that hypertension is a diabetic complication since the normal creatinine documented by the examiner provides evidence to the examiner that the Veteran would not meet VA criteria to conclude that the Veteran had hypertension due to diabetes. Further the May 2013 QTC examiner noted no diabetic nephropathy or hypertension. The VA examiner noted that the Veteran does not meet the VA criteria for a diagnosis of hypertension. Currently, the Veteran is not on blood pressure medication and his last three recorded systolic blood pressures were less than 160 and two of his three diastolic blood pressures were less than 90. Thus, none of these findings meet the statistical threshold warranting a diagnosis of hypertension on VA standards. VA treatment records have been associated with the claims file. VA treatment records note instances of blood pressure within normal limits and several instances of elevated blood pressure readings. In March 2017 treatment records noted a blood pressure reading of 146/91 with automated reading however a repeat blood pressure check was normal with BP of 126/80. VA treatment records note active medication for lisinopril in May 2014, which was not filled nor appeared to be continued. The Veteran has reported inconsistently taking the medication for several weeks. After consideration of all the evidence of record the Board finds that the weight of the evidence is against finding that service connection for hypertension is warranted. As to the Veteran's general contentions of ongoing symptoms and manifestations the Veteran is competent to report his ongoing symptomology. While the Veteran reports that his hypertension is generally related to service and related to his service-connected diabetes mellitus the record does not reflect that he has the requisite training or expertise to offer a medical opinion linking a current disability to service or a current service connected disability and as such the Veteran is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board finds that the medical evidence is more probative and credible than the lay opinions of record. The competent medical evidence of record specifically the VA opinion in August 2020 and supplemental opinion in October 2020 are entitled to significant probative weight. The VA examiner in August 2020 noted that the Veteran does not currently have a diagnosis of hypertension or isolated systolic hypertension based on VA criteria. The examiner noted that the Veteran's treatment plan does not include taking continuous medication for hypertension or isolated systolic hypertension. The examiner noted that the Veteran does not have a history of a diastolic blood pressure elevated to predominately 100 or more. The examiner noted that based on a review of the Veteran's claims file and examination that it is less likely than not that the Veteran has a diagnosis of hypertension that was incurred in or caused by service. The examiner noted that the Veteran does not have a diagnosis of hypertension that meets the VA criteria of diastolic BP predominately over 90 or an isolated systolic BP predominantly over 160. Two months prior to separation in May 2013 BP was noted to be 134/86, 114/78 and 108/77. The examiner noted no diagnosis of hypertension or use of prescribed anti-hypertensive agents in the Veteran's STRs. The examiner noted that an extensive review of the Veteran's post-service treatment records shows more than 11 diastolic BPs less than 90 and only 7 greater than 90, with more than 60 percent being normal. There were no systolic blood pressures greater than 160. While the Veteran was prescribed antihypertensive these were only taken for several weeks in 2013. As such the examiner found that the Veteran does not meet VA criteria for hypertension during or after military service. The supplemental VA opinion noted review of prior DBQs relating to the Veteran's diabetes mellitus type II. In addition, the October 2020 examiner noted that the Veteran does not meet the VA criteria for a diagnosis of hypertension. Further, VA treatment records consistently note that the Veteran has not meet the VA criteria for a diagnosis of hypertension. The Board notes that there are instances in the treatment records where hypertension has been indicated on problem lists but there is no evidence indicating this symptomology has meet the VA criteria for hypertension. Thus, the more probative evidence of record indicates that the Veteran does not have a current hypertension disability, and as such service connection is not warranted. As to secondary service connection, the Veteran contends that his hypertension is due to his service-connected diabetes mellitus type II. As noted above, the Veteran is currently service connection for diabetes mellitus type II rated as 60 percent disabling. As noted above the Board finds that the August 2020 VA examination and October 2020 VA supplemental opinion are entitled to significant probative weight. As to secondary service connection, the examiner found that based on an extensive review of the claims file and examination it is less likely than not that the Veteran's hypertension was proximately due to or the result or aggravated by his diabetes mellitus type II. The examiner noted that the Veteran does not have hypertension as per the VA criteria. Further, he has normal renal function, in April 2013 his creatinine (CR) was .75, estimated glomerular filtration rate test (EGFR) was 121, and in May 2020 his CR was .77 and EGFR was 114, without proteinuria. The examiner noted that abnormal renal function is a perquisite to establish hypertension due to diabetes mellitus type II. There is no evidence of abnormal renal function, and thus the examiner noted that hypertension due to diabetes mellitus type II is not found. Further, the VA supplemental opinion in October 2020 noted review of the prior DBQ suggesting that hypertension is a diabetic complication. However, the VA examiner found that this conclusion that the Veteran's hypertension is a diabetic conclusion has no standing. The VA examiner noted that this DBQ were not completed by a C&P examiner who would be expected to be familiar with VA criteria that must be fulfilled to conclude that hypertension is secondary to diabetes mellitus type II. Specifically, the May 2014 DBQ failed to fully address section II, which notes diabetic renal disease. The examiner noted that had the Veteran's primary care VA provider who completed the DBQ looked at Section III, she would have been promoted to review the CMC labs from May 5, 2014 which showed a creatinine of .77. The VA examiner noted that such is inconsistent with a finding that hypertension is present and a diabetic complication. A January 2017 DBQ was completed by a contract QTC C&P examiner which does not identify hypertension as a complication of the Veteran's diabetes. The laboratory findings associated with this examination noted creatinine of .75 which was noted to be normal. As the creatinine obtained by the QTC examiner was normal and it would be appropriate that the examiner did not specifically confirm that hypertension is a diabetic complication since the normal creatinine documented by the examiner provides evidence to the examiner that the Veteran would not meet VA criteria to conclude that the Veteran had hypertension due to diabetes. Further the May 2013 QTC examiner noted no diabetic nephropathy or hypertension. The October 2020 again noted that the Veteran does not meet the VA criteria for a diagnosis of hypertension and there is no evidence that hypertension is a complication of or related to the Veteran's service connected diabetes mellitus. As such service connection on a secondary basis is not warranted. As such, the Board finds that service connection for a hypertension disability, to include as due to service connected diabetes mellitus type II is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim for entitlement to service connection for a hypertension disability, to include as due to service connected diabetes mellitus type II is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.R. Kardian, 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.