Citation Nr: 21066696 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-58 189 DATE: November 1, 2021 REMANDED 1. Entitlement to service connection for hypertension, to include as due to service-connected Post Traumatic Stress Disorder (PTSD), is remanded. 2. Entitlement to service connection for low back injury is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1983 to November 1983, November 2004 to May 2009, and October 2009 until November 2010, with additional years of service in the Army Reserve. This matter comes before the Board of Veterans Appeals (Board) from a June 2015 rating decision of the Department of Veteran's Montgomery, Alabama regional office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in July 2019. A transcript of the testimony is of record. This matter was previously before the Board in September 2019 when it was remanded for further evidentiary development. Concerning the low back claim, the Board requested that the RO obtain a medical opinion concerning whether the Veteran's back injury is related to his active-duty service, to include falling out of a Humvee vehicle. As will be explained in more detail below, this request was never accomplished. Regarding the hypertension claim, the Board requested that the RO obtain a medical opinion determining whether the Veteran's preexisting hypertension was aggravated by service. As will also be explained in greater detail below, the opinion provided is inadequate. Since there has not been substantial compliance with the Board's previous remand directives another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for hypertension, to include as due to service-connected Post Traumatic Stress Disorder (PTSD), is remanded. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a) (2017). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b) (2017); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran contends that his hypertension is related to his period of active service, and/or was aggravated by his period of active service. In the alternative, he argues that his hypertension is secondary to his service-connected PTSD. By way of brief procedural background, the RO denied the Veteran's claim for hypertension in a June 2015 rating decision opining that the Veteran's hypertension was preexisting and not permanently worsened as a result of service. This determination was based on an August 2002 Report of Medical History which noted a diagnosis of hypertension, indicating a pre-existing condition with regard to the November 2004 to May 2009 and October 2009 to November 2010 periods of active-duty service. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). "When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Board acknowledges that the record does not contain most of the Veteran's STRs from active duty, to include any reports of medical examination upon entrance to active duty for June 1983, November 2004, or October 2009. Where an entrance examination is lost or missing, the presumption of soundness attaches. See Doran v. Brown, 6 Vet. App. 283, 286 (1994). As such, the presumption of soundness attaches with regard to hypertension. Thus, the burden is on VA to show by clear and unmistakable evidence that the disability both pre-existed service and was not aggravated during service. A May 2000 Memorandum, created during the Veteran's service in the Reserve, notes the need for a physical examination for the Veteran's elevated blood pressure. Service treatment record (STR) from active duty reflect a September 2007 Report of Medical History which includes a Health Provider Statement noting "well controlled hypertension due to medication." An October 2008 Periodic Health Assessment reveals a provider comment noting controlled high blood pressure due to medication. An August 2009 Reserve Health Readiness Program Questionnaire notes the Veteran's report of taking medication for high blood pressure. Reserve STRs from June and July 2010 show a history of hypertension with a blood pressure reading of 137/84 and hypertension medication on the active medication list. A March 2011 VA Examination report notes the Veteran's need of continuous medication for control of hypertension. In July 2019, the Veteran testified that he was diagnosed with hypertension in 2002, while in Reserve, before being deployed to Iraq. See Hearing Testimony pg. 4. The Veteran underwent an examination for his hypertension in January 2020. The examiner opined that the Veteran's hypertension clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by service. The rationale explained that the August 2002 diagnosis clearly and unmistakably indicates the disease pre-existed service, and no aggravation is shown as indicated by his blood pressure being under control with one medication only, along with normal renal function, and no cardiovascular complications. Initially, the Board finds the January 2020 VA opinion to be narrowly inadequate due to the examiners failure to address the missing reports of medical examination upon entrance to active duty in June 1983 when opining that the disease pre-existed service. Therefore, this opinion has little to no probative value in assisting the Board in determining whether the condition clearly and unmistakably preexisted service. Moreover, while the Board acknowledges the May 2000 Memorandum noting elevated blood pressure, and the Veteran's competent and credible report of being diagnosed with hypertension in 2002, during his time in Reserve, the Board finds that without the reports of medical examination upon entrance to active duty for June 1983, any finding that the Veteran's hypertension preceded this period of service is speculative and cannot rise to the level of clear and unmistakable evidence. The Veteran is therefore presumed sound. Having found that the Veteran is presumed sound regarding his current hypertension condition, the Board will address whether that disability was due to service. In addressing direct service connection, the medical evidence reflects that the Veteran has been diagnosed with hypertension, as noted in the January 2020 VA examination. Thus, the first element of service connection has been met. Moreover, STRs from the Veteran's second period of active duty reveal diagnosis of hypertension, described as "well controlled." Thus, the second element of service connection has been met. In such situations where STRs are missing, the Board has a heightened obligation to explain its findings and conclusions, a heightened duty to search for records and explain their efforts to that effect, and a requirement to carefully consider the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law, however, does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). There is no presumption, either in favor of the claimant or against VA, arising from missing records. In light of the above, the Board's review of medical evidence indicates that direct service connection is not warranted. Here, the earliest service record revealing symptoms of hypertension, to include elevated blood pressure, is found in May 20000 Memorandum, a time period between the Veteran's first and second period of active-duty service. This corroborates the Veteran's testimony that he was diagnosed with hypertension in 2002 prior to his second period of active duty. While neither medical or lay evidence of record reveals whether the Veteran demonstrated hypertensive symptomology during his first period of active-duty service from June 1983 to November 1983, Reserve treatment records from June 1990 and April 1994 note the Veteran's response of "no" when asked whether he had high or low blood pressure. The Veteran has not reported in any of his correspondence with VA, including his July 2019 hearing testimony, that he had high blood pressure during his first active-duty period in service ending in November 1983, but instead has testified that he was diagnosed while in the Reserves, between his first and second period of active-duty service. In this regard, the January 2020 examiner found that there was no aggravation in service as indicated by the Veteran's blood pressure being under control with one medication only, along with normal renal function, and no cardiovascular complications. The Board finds this opinion to be probative in regard to the aggravation opinion only as the examiner reviewed the entire medical history file, and provided a conclusion based on an accurate factual basis with supporting rationale Accordingly, there is no competent evidence of a nexus between the Veteran's active-duty service and his current condition of hypertension. Lastly, review of the available reserve medical records does not reveal that the Veteran suffered from hypertension or injury that resulted in hypertension while performing active duty for training or inactive duty training. Thus, direct service connection must be denied. However, as noted above, in September 2021 correspondence, the Veteran's representative argued that the Veteran's hypertension is secondary to his service-connected PTSD, noting a study published in the Open Cardiovascular Medicine Journal showing a potential link between PTSD and major forms of cardiovascular disease, including hypertension. Because there is no medical opinion of record addressing this contention, a remand is warranted. 2. Entitlement to service connection for low back injury is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue of entitlement to service connection for low back injury. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds the January 2021 VA examination report to be nonresponsive to the Board's previous remand order. In this regard, the examiner failed to address the Veteran's contention that his degenerative disk disease (DDD) is the result of an attempt to escape from a Humvee during an attack, while in Iraq. Indeed, instead of addressing the Veteran's contentions as required, or explaining why such lay history is not deemed credible in the examiner's estimation, the examiner opined that the Veteran's reported pulled back injury in December 2008 was a temporary condition which resolved without any residual conditions. Moreover, the examiner failed to address whether the documented December 2008 pulled back injury could be connected to the Humvee incident described by the Veteran. Thus, a remand is warranted. The matters are REMANDED for the following action: 1. Obtain updated VA and/or private treatment records. If such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38C.F.R.§3.159(e). 2. Obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the Veteran's claims file, including a copy of this remand order. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a) Is it as least as likely as not (50 percent or greater probability) that the Veteran's hypertension was caused, or aggravated by the Veteran's PTSD? If it is determined that there is another likely etiology for the Veteran's hypertension, that should be stated. (c) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's DDD is related to, caused by, or aggravated by active duty to include the in-service Humvee accident. A rationale should be provided to support all opinions made by the examiner. In considering (c), the examiner should accept as true that the Veteran was involved in a Humvee accident during active service. Additionally, in all opinions rendered, the examiner is advised that the Veteran is competent and credible to report his symptoms and treatment history including his reports of back pain due to his in-service injury. The examiner should also address whether the documented December 2008 pulled back injury could be connected to the Humvee incident described by the Veteran The examiner must specifically consider and discuss the Veteran's testimony, in addition to the lay statements of record, regarding his in-service injury and rationale should reflect such consideration. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that question(s). Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell, Tangela 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.