Citation Nr: 21067989 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 16-44 354 DATE: November 8, 2021 ORDER Entitlement to service connection for hypertension is granted. REMANDED Entitlement to a rating in excess of 10 percent for sinusitis, status post sinus surgery (sinusitis), is remanded. Entitlement to service connection for post-traumatic stress disorder (PTSD) is remanded. Entitlement to service connection for angina pectoris is remanded. Entitlement to service connection for bronchitis with allergies is remanded. Entitlement to service connection for a scar, status post splenoid sinus surgery, is remanded. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his hypertension manifested to a compensable degree within one year of his separation from service and is not attributable to intercurrent causes. CONCLUSION OF LAW The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1974 to July 1978 and January 2004 to January 2005 with additional service in the National Guard and Reserves between his periods of active-duty service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in November 2020. A transcript of the hearing is of record. Additional records were associated with the Veteran's file after the Agency of Original Jurisdiction (AOJ) issued a July 2016 Statement of the Case (SOC). In December 2020, the Veteran submitted Social Security Administration (SSA) records and a waiver of initial review of these records by the AOJ. In June 2018, the Veteran submitted VA treatment records ranging from March 2012 to May 2018 and a waiver of initial review of these records by the AOJ. VA associated with the Veteran's claim file medical records ranging from January 2017 to August 2019. The Veteran did not submit a waiver of initial review by the AOJ for the records generated after his June 2018 waiver and waiver of AOJ initial review is not presumed. The Board; however, will proceed with adjudication of the issue of entitlement to service connection for hypertension. As the Board is granting entitlement to service connection for this issue and this is a full grant of the benefit sought, the Veteran is not prejudiced by the Board's actions. Entitlement to service connection for hypertension 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, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including hypertension, may be presumed to have been incurred in or aggravated by service if they manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). Moreover, if those same diseases are noted during service, continuity of symptomatology can show chronicity and subsequent manifestations of the same disease is presumed to be service connected. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-99 (1997) (Overruled on other grounds by Walker, 708 F.3d 1331). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran contends his hypertension began while deployed to Iraq. The Veteran's treatment records consistently show he has a current hypertension disability that requires constant medication. The earliest documented treatment for this disability is a VA treatment record from November 2005. The Veteran testified at the November 2020 hearing he began having high blood pressure while deployed to Iraq, continues to have high blood pressure today, and has taken continuous medication for treatment since returning from his deployment. The Veteran is competent to report his medical history, including blood pressure readings and treatment. As noted above, the Veteran most recently served on active duty from January 2004 to January 2005, including a deployment to Iraq. During this period of active service, medical providers recorded blood pressure readings of 177/100 in January 2005, 154/96 in October 2004, 149/93 in August 2004, 137/90 in July 2004, 142/92 in April 2004, and 120/100 in May 2004. In a January 2005 treatment note, the attending physician advised the Veteran to follow up with his primary care provider for treatment of his high blood pressure. After his deployment to Iraq, the Veteran's VA treatment records show he has a diagnosis of hypertension. A November 2005 Preventative Health Clinic treatment note shows a blood pressure reading of 170/100; indicates the "Patient has hypertension" that is uncontrolled; the Veteran is currently taking medication for blood pressure management; and once his blood pressure is controlled, stable, and without complication he will be cleared for "...pt testing." The attending medical provider reported the Veteran's blood pressure was rechecked and the physician again recorded a 170/100 reading. Another November 2005 treatment note reports the Veteran's blood pressure is 177/100. A March 2005 VA treatment note shows a blood pressure reading of 152/96 and a February 2005 VA treatment note shows a blood pressure reading of 163/98. The Veteran's VA treatment records also contain multiple notations that his blood pressure is greater than 140/90, without providing specific readings. In sum, the Veteran testified he began having high blood pressure while deployed to Iraq, continues to have high blood pressure today, and takes continuous medication. The Veteran's testimony is corroborated by his VA treatment records, which indicate he has hypertension that he treats with medication. His VA treatment records also indicate he was diagnosed with hypertension, at the latest, in November 2005, within one year of returning from his deployment to Iraq. Further, the Veteran's service treatment records contain a note directing him to seek treatment from his primary care provider for his high blood pressure. Granting the Veteran the benefit of reasonable doubt, the Board finds the evidence is at least in relative equipoise regarding whether his hypertension disability was manifested to a compensable degree within one year of his separation from service based on diastolic pressure predominantly 100 or more that requires continuous medication. See 38 C.F.R. §§ 3.307, 3.309(a), 4.104, Diagnostic Code 7101. Therefore, presumptive entitlement to service connection for hypertension as a chronic disability is warranted. See Wise v. Shinseki, 26Vet. App. 517, 532 (2014) ("By requiring only an 'approximate balance of positive and negative evidence 'the Nation, in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding . . . benefits."). REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for sinusitis is remanded. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD) is remanded. 3. Entitlement to service connection angina pectoris is remanded. 4. Entitlement to service connection for bronchitis with allergies is remanded. 5. Entitlement to service connection for a scar, status post splenoid sinus surgery, is remanded. In July 2012 the Veteran filed a supplemental claim for an increased rating for his sinusitis and service connection for PTSD, angina pectoris, bronchitis with allergies, and hypertension. After developing the claims, the AOJ issued a rating decision in November 2013. The Veteran submitted a Notice of Disagreement in October 2014, the AOJ issued a Statement of the Case (SOC) in July 2016, and the Veteran submitted VA Form 9 in September 2016. After issuing the July 2016 SOC, VA provided the Veteran an additional sinusitis examination in September 2019 and associated additional VA treatment records generated after the Veteran's June 2018 waiver of initial review. The AOJ has not provided a Supplemental Statement of the Case (SSOC) addressing the September 2019 VA examination nor the VA medical records. Although the Veteran has provided waivers of initial consideration by the AOJ for some evidence he submitted, the record does not contain a waiver of initial review for the September 2019 VA examination nor VA medical records generated after the Veteran's June 2018 waiver. Since the previously unconsidered treatment records and VA examination were not submitted by the Veteran, they are not covered by the presumptive waiver provisions applicable to legacy appeals, which were previously codified at 38 U.S.C. § 7105(e). As a result, the issues on appeal must be remanded to the AOJ for initial consideration of the newly obtained evidence to ensure the Veteran is afforded due process. See 38 C.F.R. § 19.37(b); see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003). Moreover, VA's duty to assist requires reasonable efforts to ensure all relevant treatment records have been obtained and associated with the claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). The Veteran's SSA records indicate he sought treatment at the University of South Alabama Medical Center. Although SSA was unable to obtain the medical records there is no indication VA has attempted to obtain them. VA must attempt to obtain the University of South Alabama Medical Center records as they are potentially relevant to the Veteran's claim. Id. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the University of South Alabama Medical Center, which may have records related to the Veteran's appeal. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Readjudicate the remaining issues on appeal based on all the evidence of record, to include, but not limited to, the September 2019 Sinusitis Disability Benefits Questionnaire associated with the claims file in September 2019 and all VA generated treatment records, taking any development action deemed necessary after review of such evidence. If any benefit sought on appeal remains denied, issue a SSOC and return the Veteran's case to the Board, if otherwise in order. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachery S.C. Luce, Associate 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.