Citation Nr: 21064649 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 18-53 605 DATE: October 21, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1999 to July 2002 and from April 2003 to June 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). Although the Board regrets the additional delay, the Veteran's claims seeking entitlement to service connection for a low back disability and hypertension must be remanded for additional evidentiary development to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claims. 1. Entitlement to service connection for a low back disability is remanded. The Veteran's claim seeking entitlement to service connection for a low back disability was previously denied in an April 2020 Board decision. The Veteran filed a timely appeal before the United States Court of Appeals for Veterans Claims (Court). In June 2021, the Court granted a Joint Motion for Partial Remand (JMPR) vacating the Board's denial of the claim seeking service connection for a low back disability, and remanding it back to the Board for reconsideration consistent with the terms of the JMPR. In the JMPR, the parties (VA and the Veteran) identified several issues inadequately addressed in the April 2020 Board decision, as discussed below. First, the parties to the JMPR agreed that the Board erred in failing to set forth adequate reasons and bases addressing whether the duty to assist in obtaining the Veteran's service treatment records was satisfied. In the November 2018 VA Form 9, Substantive Appeal, the Veteran issued a statement alleging that her service treatment records may be incomplete because they "only show[ed] sick calls, but no treatment or therapy [she] underwent." This statement is inexact, as in addition to the Veteran's sick call records, the available service treatment records also document treatment and therapy for her medical conditions. However, the available service treatment records only cover the Veteran's first period of active duty service. While the Veteran submitted partial service treatment records covering her second period of active duty service during her time in the Army Reserves, the Board finds that remand is appropriate for the RO to undertake additional efforts to locate the complete service treatment records from the Veteran's second period of active duty service from April 2003 to June 2003. Additionally, in the April 2016 VA Form 21-0958, Notice of Disagreement, the Veteran alleged that her low back disability was treated by an unidentified chiropractor during her active duty service in Hawaii. The Veteran's personnel records indicate that she served in Hawaii from January 2000 to July 2002. The service treatment records from the Veteran's first period of active duty service do not contain reference to chiropractic treatment. It is unclear from the Veteran's statements whether this chiropractic care was performed by military medical services or through civilian providers. Upon remand, the RO is requested to contact the Veteran and obtain additional information regarding this reported in-service chiropractic care, to include the name of the provider or the facility. If the Veteran is able to provide information sufficient to allow VA to conduct a meaningful search for such records, and if authorization is provided (if needed), the RO is requested to undertake appropriate efforts to locate the Veteran's missing chiropractic records from her period of service in Hawaii. Second, the parties to the JMPR agreed that the Board erred in failing to set forth adequate reasons and bases addressing whether the April 2014 VA spine examination was legally sufficient. The parties noted that the VA examination report was internally inconsistent, as the diagnosis section of the report contained a diagnosis of intervertebral disc syndrome (IVDS), but later in the report, when the VA examiner was asked "[d]oes the Veteran have IVDS of the thoracolumbar spine?," he checked the "no" box. The parties further agreed that it was unclear whether the VA examiner's negative medical nexus opinion addressed the issue of IVDS. The Board finds that the claim must be remanded for a new VA examination that addresses whether the Veteran has ever been diagnosed with IVDS during the appellate period, and if so, whether this diagnosis is etiologically related to her active duty service. In a June 2021 appellate brief, the Veteran raised additional issues with the July 2014 VA medical opinion. In relevant part, the VA examiner stated that the Veteran's "minimal degenerative disc disease" of the lumbar spine was more likely than not related to the progression of aging. He stated that "[i]n individuals of all ages undergoing MRI, 30% of those without symptoms showed disc degeneration; [and] among individuals 60 years of age and older, 57% had abnormalities. The tendency to develop lumbar disc degeneration at an earlier age appears to be genetic. Smoking has been shown to increase the risk and rate of disc degeneration." In the appellate brief, the Veteran argued that the VA medical opinion is inadequate because it failed to appropriately consider her documented in-service low back complaints or her lay reports of continuous low back symptoms since service. Additionally, the Veteran argued that the VA examiner failed to adequately explain how the provided rationale for the negative nexus statement actually applied to her factual circumstances. She stated that the commentary regarding degenerative disc disease in 60 year old individuals was misplaced, as she was only 36 years old at the time of the VA examination, and the VA examiner failed to explain how he determined that her degenerative changes were shown to be the result of genetic predisposition. Moreover, the VA examiner did not address why a history of smoking was relevant, as she argued that she was a nonsmoker. The evidence available at the time of the VA examination identified the Veteran as a nonsmoker, but more recent evidence shows that she has begun smoking cigars weekly. See November 2019 VA gynecological records. The Board agrees that the rationale provided by the July 2014 VA examiner is not factually accurate or of sound reasoning. Upon remand, a new VA medical opinion shall be obtained that fully and accurately addresses the Veteran's contentions and medical history. Third, the parties to the JMPR agreed that the Board failed to adequately consider the Veteran's lay reports of continuity of symptoms of low back pain since service discharge. See April 2016 Notice of Disagreement (alleging continuity of back pain since service); see also July 2014 VA examination (alleging flare-ups of back pain 5 to 6 times per year since service discharge). The Court has held that medical evidence may play a role in the Board's analysis of the credibility of lay statements, and a VA medical opinion "can better inform the Board's understanding of the medical feasibility of the veteran's lay statements." See Miller v. Wilkie, 32 Vet. App. 249, 259 (2020). Upon remand, the VA examiner shall be explicitly requested to address the medical feasibility of the Veteran's lay reports of continuous low back symptoms since service. Lastly, the parties to the JMPR agreed that the Board erred in its duty to assist, as it adjudicated the Veteran's claim without obtaining relevant VISTA imaging records identified in the VA treatment record uploads. See e.g. April 2014 reference to "Non-VA Care Consult Results Orthopedic" scanned into VISTA; April and May 2014 reference to Non-VA physical therapy documents scanned into VISTA. Upon remand, the RO is requested to obtain all documents scanned into the Veteran's VISTA imaging file and associate these records with the electronic claims file for evidentiary consideration. The RO is also requested to obtain any additional VA treatment records from June 2020 to the present, and associate them with the electronic claims file for evidentiary review. 38 C.F.R. § 3.159(c)(2) and (3); Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. Entitlement to service connection for hypertension is remanded. The Veteran's claim seeking entitlement to service connection for hypertension was last before the Board in April 2020, where it was remanded for a VA examination. The Veteran alleges that she "suffered with hypertension while in the service and [has] continued to suffer with the disability since leaving the service." See April 2016 Notice of Disagreement. Based on the current evidentiary record, this allegation is inaccurate. The available service treatment records contain references where the Veteran self-reported a history of high blood pressure. See February 2000 dental report; January 2001 gynecological report. The Veteran told a January 2001 gynecological evaluator that she only had high blood pressure during her pregnancy, and that she was not on any medication for the condition. If true, this evidence would indicate that the Veteran's high blood pressure preexisted her active duty service, as her son was born in 1998 prior to her active duty service. See June 1999 entrance Report of Medical History. However, at service entrance, the Veteran did not report a preexisting history of high blood pressure, and no defects of hypertension were noted on her entry physical examination. The single lay report that the Veteran experienced preexisting high blood pressure during her 1998 pregnancy is not clear and unmistakable evidence of a preexisting hypertension disability, and since no defects were noted at service entrance, the presumption of soundness attaches, and the claim shall proceed as one seeking service connection based on in-service incurrence as opposed to in-service aggravation. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Contrary to the Veteran's allegation, the currently available service treatment records do not contain an in-service diagnosis of hypertension, and they do not contain convincing evidence of in-service hypertension under the regulatory definition of hypertension or isolated systolic hypertension set forth in Diagnostic Code 7101, 38 C.F.R. § 4.104. Under Note (1) of this diagnostic code, "the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm." The Board has reviewed the currently available service treatment records, and out of the 44 in-service blood pressure readings reviewed, 2 out of 44 showed systolic pressure of 160mm. or greater, and 13 out of 44 showed diastolic pressure of 99mm. or greater. The Veteran's blood pressure readings were variable over time and did not demonstrate an upward trajectory of worsening over time. The Veteran was never diagnosed with hypertension by military health providers. The October 2020 VA examiner issued a negative nexus opinion declining to link the Veteran's current hypertension to service based on the dearth of evidence showing chronically elevated high blood pressure readings consistent with hypertension in the Veteran's service treatment records. The VA examiner correctly indicated that the Veteran was not formally diagnosed with clinical hypertension until November 2006, more than three years after her separation from her final period of active duty service. Unless the missing records from the Veteran's period of active duty service, as discussed in the remand regarding the Veteran's low back claim, supra, result in a material change in circumstances regarding in-service presence of hypertension, the Board finds that no further VA medical opinions are warranted for this claim. As such, the need for additional evidentiary development shall be left to the discretion of the RO following its efforts to identify and obtain the Veteran's missing service treatment records. The matters are REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from June 2020 to the present. 2. Obtain all records in the Veteran's VISTA imaging file in the Computerized Patient Record System, to include the April 2014 non-VA orthopedic records, and the April and May 2014 non-VA physical therapy records. 3. Undertake appropriate efforts to locate and obtain the complete service treatment records from the Veteran's second period of active duty service from April 2003 to June 2003 while in the Army Reserves. 4. Contact the Veteran and solicit additional information necessary to identify the appropriate records custodian for her claimed in-service chiropractic care while stationed in Hawaii from January 2000 to July 2002. If she is able to provide sufficient information to locate these outstanding records, ask her to complete a VA Form 21-4142 for the missing records from the identified provider. If the records are from a private provider, make two requests for the authorized records from this treatment provider unless it is clear after the first request that a second request would be futile. If it is determined that these chiropractic records are federal records, make as many requests as are necessary to obtain the records, and efforts should not cease unless it is determined that the records do not exist or that future efforts to obtain the records would be futile. 5. THEN schedule the Veteran for an additional VA low back examination before an appropriate VA examiner. Following a complete review of the electronic claims file, including a copy of this REMAND, the VA examiner is requested to address the following inquiries: (a.) Has the Veteran been diagnosed with IVDS during the appellate period? Why or why not? (b.) If a diagnosis of IVDS is issued, is it at least as likely as not (50 percent probability or greater) that the Veteran's IVDS was incurred in or is otherwise etiologically related to the Veteran's active duty service? (c.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's lumbar degenerative disc disease, as identified by the July 2014 VA examiner, was incurred in or is otherwise etiologically related to the Veteran's active duty service? In responding to questions 5 (b) and (c) above, the VA examiner is requested to consider and address the low back complaints and diagnoses documented in the Veteran's service treatment records, as well as her lay reports of experiencing continuous low back symptoms since service, to include flare-ups occurring 5 to 6 times per year. To assist VA in assessing the credibility of these lay reports, the VA examiner is requested to address the medical feasibility of the Veteran's reports of continuous low back symptoms since service separation. 6. If the procurement of the missing records identified in remand directives 3 and 4, above, result in a material change of circumstances regarding in-service incurrence of hypertension, the RO shall use its discretion to determine whether an additional VA medical nexus opinion is necessary to resolve the appeal. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante, 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.