Citation Nr: 21066170 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 06-25 230 DATE: October 28, 2021 REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to a compensable initial rating for nephrolithiasis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from March 1964 to January 1968 and from May 1974 to December 1980. He later served in the United State Air Force from November 1993 to January 2003. These matters were last before the Board in July 2021, whereupon they were remanded to the Agency of Original Jurisdiction (AOJ) for further development of the record. Following the issuance of an August 2021 supplemental statement of the case continuing the denial of both issues, the case was returned to the Board for its adjudication. The Board refers to its prior discussion in the July 2021 remand as to the issue of whether TDIU has been raised by the record and confirms that it has not. 1. Entitlement to service connection for hypertension is remanded. The Board's July 2021 remand instructed the AOJ to secure an addendum opinion from a qualified examiner regarding the issue of whether hypertension was secondary to a service-connected disability. The Board noted that it requested such an opinion in prior remand instructions dated in January 2020 and in September 2020, and that the resultant opinions dated in February 2020 and in May 2021 did not adequately address the query of whether the hypertension was secondary to a service-connected disability. Cumulatively, the previous opinions did not provide a sufficient rationale to support the conclusion that the hypertension was not aggravated by a service-connected disability, specifically, chronic kidney disease. The Board highlighted that there is no temporal element to the consideration of aggravation in the context of secondary service claim, and detailed that the hypertension could be aggravated by a disease or injury that manifested after the hypertension was diagnosed. Pursuant to the July 2021 remand instructions, the Veteran's claims file was reviewed by a VA medical professional in August 2021, who opined that it was less likely than not that the hypertension was incurred in or otherwise attributable to service. In support thereof, the examiner relied on a notation of elevated blood pressure on the February 1964 entrance examination for the determination that the hypertension preexisted service. The examiner also highlighted the lack of further treatment for or diagnosis of hypertensive symptomatology during service and for several years thereafter. The August 2021 examiner also opined that it was less likely than not that the hypertension was proximately caused or aggravated by a service-connected disability. In support thereof, the examiner noted that the Veteran experienced an isolated episode of kidney stones in 1999 and in 2000, and that the hypertension apparently existed prior to this time period. The examiner also detailed that the Veteran developed chronic kidney disease in 2015 after his diagnosis of hypertension. The Board cannot rely on these opinions for a variety of reasons. To begin, the examiner apparently concluded that the Veteran's hypertension existed prior to service and supported some or all of her findings on this determination without a sufficient analysis of the propriety of that determination. As a reminder, every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C. § 1132. In a case where there is no preexisting condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (a) the condition preexisted service and (b) the preexisting condition was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (2004); 38 U.S.C. § 1132. To satisfy the second requirement for rebutting the presumption of soundness, the government must rebut a statutory presumption of aggravation by showing, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition. Joyce v. Nicholson, 443 F. 3d 845, 847 (Fed. Cir. 2006). With these considerations in mind, the August 2021 examiner's determination that the hypertension preexisted service raises considerable doubts as to the probative value of her opinions. Of note, the VA examiner did not make a finding that the Veteran's blood pressure readings on the entrance examination met the criteria for a formal diagnosis of hypertension under VA guidelines, and the Board's review of that examination confirms that those readings do not. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. As such, although the blood pressure readings may have been elevated, the Board does not find that the examiner met the clear and unmistakable standard in determining that the Veteran's hypertension preexisted service. On remand, the chosen VA examiner must reconcile the August 2021 examiner's determination that the Veteran's hypertension preexisted service with the evidence of record and evaluate whether the hypertension clearly and unmistakably preexisted service; if so, the chosen examiner must then evaluate whether the hypertension clearly and unmistakably was not aggravated by service. Outside the lack of clarity concerning this new element of the analysis of the Veteran's hypertension claim, the Board finds fault with the August 2021 examiner's opinion regarding the likelihood that secondary service connection was warranted. Specifically, the August 2021 examiner appeared to rely on the fact that nephrolithiasis and/or chronic kidney disease was diagnosed after the hypertension to support the denial of secondary service connection. This is in direct contradiction to the Board's previous July 2021 remand directives, wherein the Board explicitly instructed the chosen examiner that there was no necessary temporal element to the analysis of whether a claimed condition was aggravated by service-connected disability. On remand, the Board insists that the AOJ secure an opinion regarding secondary service connection that satisfies the prior remand instructions, which are copied in large part below. Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to a compensable rating for nephrolithiasis is remanded. The rating criteria for nephrolithiasis include consideration of hypertension symptoms. As such, the Board finds that this evaluation claim is inextricably intertwined with the claim for service connection for hypertension, and consideration of it will be deferred by the Board until the hypertension issue is further addressed on remand. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Provide the claims file to the examiner who issued the previous opinion in August 2021, or to another qualified medical professional if she is not available, in order to elicit an addendum opinion regarding the etiology of the hypertension. The entire claims file, including this REMAND, must be made available to the chosen examiner, who must indicate that they reviewed the claims file in full prior to issuing any opinion. The examiner is first asked to opine as to whether hypertension clearly and unmistakably preexisted service, and clearly and unmistakably did NOT worsen beyond natural progression during service. The Board notes that clear and unmistakable is an "onerous" evidentiary standard, requiring that the evidence be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003). The Veteran is presumed to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment. In setting forth this opinion, the examiner must apply the guidelines for confirming a diagnosis of hypertension set forth in 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. Regardless of the examiner's response to this query, they must alternatively consider whether it is it at least as likely as not (an approximate balance of positive and negative evidence) that the hypertension had its onset during service or is otherwise related to active service. In addition, irrespective of the answer to either question above, the examiner is also requested to provide an opinion as to whether it is at least as likely as not that the hypertension was caused or aggravated by one or more service-connected disabilities (as listed in an August 2021 rating decision). Specifically, the examiner should evaluate the likelihood that the hypertension is secondary to service-connected nephrolithiasis. If the opinion is that a service-connected disability or combination of service-connected disabilities aggravated the hypertension, the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. Moreover, when setting forth this opinion, the examiner should ensure that they apply the proper standard(s) of evaluation. Specifically, the standard for secondary aggravation is any increase in disability, as opposed to the standard of "beyond the natural progression" as noted on the examination form itself. It is essential the examiner discusses the underlying rationale of all opinions expressed, preferably citing to relevant evidence in the file supporting conclusions and/or medical literature or authority. 2. Confirm that the VA medical opinions provided comport with this remand. Specifically, ensure that the standard for secondary aggravation opinions is any increase in disability, not the standard of "beyond the natural progression" as noted on the examination form itself. Moreover, ensure that the examiner's rationale does not rely on any temporal element of the incurrence of hypertension and any potentially related service-connected disability. If the incorrect standard is applied, obtain an addendum opinion prior to readjudication of the claim. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.