Citation Nr: 21065073 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 18-25 101 DATE: October 25, 2021 ORDER Entitlement to service connection for hypertension is granted. REMANDED Entitlement to service connection for a right ankle disorder is remanded. FINDING OF FACT The Veteran's pre-existing hypertension increased in severity during his combat service. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension are met. 38 U.S.C. §§ 1110, 1153, 1154(b); 38 C.F.R. § 3.303, 3.304, 3.306. REASON AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1988 to July 1992 and January 2010 to January 2011, to include service in Southwest Asia. His decorations include the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). He participated in an informal hearing conference in February 2017. The Veteran testified before the undersigned in February 2021. 1. Entitlement to service connection for hypertension is granted. The Veteran asserts that his hypertension, while existing prior to his second period of active duty, increased in severity beyond its natural progression during his combat service in Iraq. The Board agrees. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection on a direct basis requires evidence demonstrating: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the claimed in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). A veteran is presumed to have been sound upon entry into active service, except as to conditions noted at the time of the 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). If a condition is noted at the time of service entrance, a veteran is not entitled to the presumption of soundness. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Under such circumstances, 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). This presumption of aggravation only requires evidence of an actual worsening of a preexisting condition during service; it does not require direct evidence of nexus, that is, that the worsening was caused by service. Smith v. Shinseki, 24 Vet. App. 40, 47-48 (2010). The Veteran bears the burden of showing that the preexisting condition worsened in service. See Wagner, supra. Until the Veteran shows an increase in disability occurred in service, the presumption of aggravation does not attach and, thus, does not shift the burden of rebuttal to the Secretary. Once the presumption has been established, the burden shifts to the Government to show by clear and unmistakable evidence that the increase in disability was a result of the natural progress of the disease. Id.; see also Horn v. Shinseki, 25 Vet. App. 231 (2011). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). As noted above, the Veteran had two periods of active duty service, and prior to the second period, he was afforded a February 2010 pre-deployment examination. This examination noted that the Veteran had hypertension that was controlled with medication, and thus preexisted service. As such, there is no presumption of soundness at the Veteran's second period of service entry with respect to hypertension. See 38 U.S.C. § 1111. Thus, the Veteran bears the burden of showing that the pre-existing hypertension worsened in service to trigger the presumption of aggravation. Here, that burden is met. The Veteran's DD 214 shows service in Iraq as an infantryman for which he received a Combat Infantryman Badge. Therefore, as the Veteran engaged in combat with the enemy, relevant to this case is the relaxed evidentiary standard of proof afforded combat veterans under 38 U.S.C. § 1154(b). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, air, or space organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full. 38 U.S.C. § 1154(b) (emphasis added) The Veteran testified that his deployment to Iraq aggravated his pre-existing hypertension and that his medications were increased post -combat service. See February 2021 Board Hearing 6-7. Additionally, his service treatment records from his second period of service show that his hypertension required continuous management. His December 2010 post-deployment examination reveals high blood pressure, despite use of medication. This type of symptomatic manifestation requiring medication is covered by 38 C.F.R. § 3.306(b)(2). Thus, the presumption of aggravation attaches. In order to rebut the presumption of aggravation, there must be clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or a specific finding that any increase was the result of natural progression. 38 C.F.R. § 3.306. As a rebuttable presumption of aggravation has been established, VA has the burden to rebut by clear and convincing proof that there has been no increase in the severity of the preexisting condition, thereby establishing lack of a statutory requirement, or that any increase was the result of natural progression. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. See also Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). In this case, the presumption of aggravation has not been rebutted with clear and convincing proof. There is not sufficient evidence that the symptomatic manifestations during the Veteran's service were due to the natural progress of his hypertension. Notably, in rendering a negative nexus opinion, the February 2018 VA examiner failed to address the Veteran's second period of service. A remand for further clarification would constitute development of negative evidence and the Board as a matter of course does not develop for negative evidence solely to deny a claim. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 151 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim.") Therefore, service connection for hypertension that preexisted the Veteran's second period of active service is warranted based on service aggravation. See 38 U.S.C. §§ 1110, 1153, 1154(b); 38 C.F.R. § 3.306; see also Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012) (in the case of a combat veteran, not only is the combat injury presumed, but so is the disability due to the in-service combat injury). REASONS FOR REMAND 2. Entitlement to service connection for a right ankle disorder is remanded. The Veteran asserts that his current right ankle disorder is due to in-service injury or in the alternative is caused by his service-connected bilateral plantar fasciitis. The Veteran was afforded a VA examination in February 2018, which included a diagnosis of loose body and osteochondral defect right ankle status post arthroscopy. However, the examiner failed to address direct service connection, as the Veteran reported right ankle pain in July 1991 and May 2010. Regarding secondary service connection, the February 2018 VA examiner opined that it is less likely than not that the Veteran's right ankle disorder is due to compensatory changes from plantar fasciitis and that it was more likely the result of old trauma to the ankle. The Board finds this opinion to be insufficient, as the examiner did not provide adequate rationale and did not address the issue of secondary service connection based on aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 414 (2013). Accordingly, the Board finds that remand is warranted for an addendum opinion that more fully addresses the Veteran's circumstances and allegations directly related to service and secondary to his bilateral plantar fasciitis disability. Any outstanding VA treatment records and relevant private treatment records should also be obtained on remand. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding private treatment records. If any records are unavailable, notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 3. Then obtain an addendum opinion regarding the etiology of the Veteran's right ankle disorder. No additional examination of the Veteran is necessary, unless the reviewing examiner deems otherwise. Following a review of the claims file, the examiner should address the following: a. Is it at least as likely as not (50 percent probability or greater) that the Veteran's right ankle disorder had its onset in or is otherwise related to service, to include as the result of the cumulative impact of his duties related to his MOS as an infantryman? In addressing this question please discuss: (1) the service treatment record reflecting complaints of right ankle pain in July 1991 (inversion injury with swelling and a mild antalgic gait) and May 2010 (tenderness to palpation to the medial calcaneus and use of a splint and plantar fascia sock at night); (2) the Veteran's report of swollen, stiff or painful joints in December 2010; (3) the Veteran's testimony as to right ankle pain during road marches; and (4) his reports of right ankle pain since service that has continued. In addressing this question, the examiner must assume items 3-4 as true, even despite the absence of "objective documentation." b. Please state whether a nexus between the Veteran's loose body and osteochondral defect right ankle status post arthroscopy (see February 2018 VA examination report) and service is medically consistent with items (1)-(4) above. c. If the answer to (a) is no, please also opine as to whether it is at least as likely as not (50 percent or greater probability) that such right ankle disorder is (1) is proximately due to or (2) aggravated (worsened) by his service-connected bilateral plantar fasciitis. The examiner must address the Veteran's competent and credible report that his gait is affected by treatment for his plantar fasciitis, to include braces and show inserts. See February 2021 Board Hearing at 2, 10, 12. The examiner must also address the January 2013 VA examination report that the Veteran was given a special sock to hold his ankle flexed during sleep. In addressing secondary service connection, please note that the service-connected bilateral plantar fasciitis disability need not be diagnosed or service-connected at the time the right ankle disorder is incurred to establish secondary service connection, and reliance on this fact will render any secondary opinion inadequate. A complete rationale shall be given for all opinions and conclusions expressed. If unable to opine without resorting to speculation, please provide a rationale for that conclusion. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Forde, 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.