Citation Nr: 21071592 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 15-43 191 DATE: November 30, 2021 ORDER Entitlement to service connection for hypertension is denied. FINDING OF FACT The preponderance of the evidence demonstrates that hypertension clearly and unmistakably was not aggravated beyond its natural progression during service; did not begin during active service or within one year of discharge; and is not otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1111, 1112, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1976 to July 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) during a January 2019 videoconference hearing. A transcript of that hearing is associated with the claims file. This case was previously before the Board in August 2021 when it was remanded for additional development. It has returned for adjudication. Entitlement to service connection for hypertension The Veteran asserts that he is entitled to service connection for hypertension. Specifically, the Veteran claims that he had hypertension upon entrance to service that was aggravated during his period of active duty. The Board notes that 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). To rebut this presumption of soundness, the VA must show that (1) the condition clearly and unmistakably existed prior to service and (2) the condition clearly and unmistakably was not aggravated during service. Clear and unmistakable evidence is evidence that cannot be misinterpreted or misunderstood. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. It is not disputed that the Veteran has a current diagnosis of hypertension. Indeed, hypertension was noted on private treatment records in July 2013, and during a December 2019 VA examination, the examiner noted that the Veteran has a current diagnosis of hypertension. Notably, the Veteran's complete service treatment records appear to be unavailable for review. Specifically, the first page of the Veteran's entrance examination is not of record. With regard to the potentially missing service treatment records, the Board observes that the Court of Appeals for Veterans Claims (Court) has held that in cases where records once in the hands of the Government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Here, elevated blood pressure readings of 162/110, 138/80, and 142/90 were noted on the second page of the entrance examination report. His blood pressure was ultimately recorded as 140/90 and he was found to be qualified for service. The report does not indicate that the Veteran was hypertensive or that he should be referred for any sort of continued medical evaluation. Thus, at the time of entry, there is a presumption that the Veteran entered in sound health. Because the Veteran is entitled to a presumption of soundness, the Board must determine whether, under 38 U.S.C. § 1111, the presumption of soundness is rebutted by clear and unmistakable evidence. The burden of proof is on VA to rebut the presumption by producing clear and unmistakable evidence both that a disability existed prior to service and that it was not aggravated during service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) The Veteran's post-service treatment records include private treatment records dated in October 2008 noting that the Veteran had a blood pressure of 236/145. The Veteran reported that he had a similarly elevated blood pressure reading earlier in the year but denied having a history of hypertension, despite having a prescription for blood pressure medication. He was diagnosed with hypertension at that time. During the January 2019 Board hearing, the Veteran reported that he began taking medication for hypertension in high school. He stated that he had hypertension throughout his military service but that it was asymptomatic and not documented on his discharge examination. The Veteran indicated that his hypertension was aggravated during service because he was not given his medication. He noted that he has been taking medication for hypertension since he got out of service. A VA opinion was obtained in June 2021 regarding the nature and etiology of the Veteran's hypertension. After a review of the claims file, the examiner noted that there was no evidence of chronic hypertension upon entry into service. While the single blood pressure reading of 162/110 at entrance would be "mildly concerning" for someone of the Veteran's age at that time, no blood pressure readings or treatment for hypertension were noted in subsequent days to suggest that his blood pressure was being monitored. The examiner went on to state that even if pre-existing hypertension was conceded, there was no evidence that the Veteran's hypertension was aggravated beyond its natural course during service. The Veteran's separation examination reflected a blood pressure of 120 over 82, which would have been considered normal and would not require treatment. Such would suggest that any hypertension was actually ameliorated during service without treatment. The examiner stated that the Veteran's hypertension "unequivocally was not aggravated beyond its natural course while in service." An addendum opinion was obtained in September 2021. The examiner reiterated that there is no evidence of aggravation, as the Veteran did not have hypertension at separation and did not require treatment during service. In this case, the Board finds that the available evidence of record does not rise to the "onerous" evidentiary standard required for "clear and unmistakable" evidence requiring that the preexistence of a condition be "undebatable." See Miller v. West, 11 Vet. App. 345, 348 (1998) (holding that a veteran's self-report that he had previously suffered from "depression or excessive worry" prior to service was insufficient to rebut the presumption of soundness as was found in 38 U.S.C. § 1111); Crowe v. Brown, 7 Vet. App. 238, 246 (1995); Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (noting that clear and undebatable means that the evidence cannot be misinterpreted or misunderstood). Alternatively, even considering the elevated blood pressure readings at entry to be indicative of pre-existing hypertension, there is no evidence of aggravation during service. Indeed, there is no evidence of complaints or treatment for hypertension in the available service treatment records. The Veteran himself does not suggest that he sought treatment during service or that he had any symptoms associated with his hypertension. Further, the Veteran's blood pressure was within normal limits at discharge. See 38 C.F.R. § 3.306(b) (stating that aggravation may not be conceded where the disability underwent no increase in severity during service). As stated by the June 2021 VA examiner, the Veteran's normal blood pressure at discharge suggests that any pre-existing hypertension was actually ameliorated during service. Accordingly, the Board finds that any pre-existing hypertension clearly and unmistakably was not aggravated by service. Thus, the Board finds the presumption of soundness has not been rebutted. If VA fails to rebut the presumption of soundness under 38 U.S.C. § 1111, the Veteran's claim is one for service connection. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, such as hypertension, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing the second and third Shedden elements for disabilities identified as chronic diseases in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown if "the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Savage v. Gober, 10 Vet. App. 488, 498 (1997). For VA purposes, hypertension is defined as diastolic blood pressure of predominantly 90mm or greater, which must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101. Isolated systolic hypertension is defined as systolic blood pressure of predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. Id. As noted above, the Veteran has been diagnosed with hypertension during the period on appeal. Accordingly, the requirements of Shedden element (1) have been satisfied. The Veteran's available service treatment records are absent of complaint or treatment for hypertension. On his July 1980 separation examination, the Veteran's blood pressure was recorded as 120/82. However, as noted above, the Veteran had elevated blood pressure readings noted on his entrance report of medical examination. As such, the requirements of Shedden element (2) have been satisfied. The question before the Board is whether the Veteran's diagnosed hypertension had its onset within 1 year of service discharge or is otherwise etiologically related to his period of active service. The June 2021 VA examiner explained that while the Veteran had mild elevations with one more-significant reading near the time of entry, the Veteran did not develop frank hypertension requiring treatment while in service or at separation. The examiner stated that while it is unclear when treatment was instituted for the Veteran's hypertension, there are no records suggesting that it was within one year of service. As such, the examiner opined that it was less likely than not that the Veteran's hypertension had its nexus in service. In the September 2021 addendum opinion, the examiner stated that blood pressure readings may be randomly elevated based on the situation, to include based on stress, anxiety, and drug use. Accordingly, while the Veteran's blood pressure readings were elevated at entrance, if such were considered valid readings, further evaluation would have been warranted and performed. There is no evidence of active treatment for or a diagnosis of hypertension in service and the Veteran had a normal blood pressure reading at discharge. The formal diagnosis was made in 2004 based on the available records. Accordingly, the examiner found it is less likely than not that the Veteran's hypertension was caused by service or had its nexus in service. After a review of the record, the Board concludes that the preponderance of the evidence is against finding that the Veteran's hypertension manifested in service or to a compensable degree within 1 year of his separation from service. The first indication of hypertension in the available treatment records is from 2008, over 20 years after separation from service. The Board finds it particularly persuasive that in 2008, the Veteran denied a history of hypertension. Consequently, service connection for hypertension as a chronic disease is not warranted. Notably, the Veteran has not submitted competent evidence to show that he has suffered from hypertension continuously since service. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). There is also no evidence that the Veteran's hypertension is otherwise related to service. The only competent evidence in the record addressing the question of a nexus is the VA medical opinions, which state that the Veteran's hypertension was less likely than not related to service. There is no medical opinion to the contrary. The Board has considered the statements of the Veteran relating his hypertension to his period of active service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, diagnosing and commenting on the etiology of the Veteran's hypertension, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons not competent to diagnose cancer). Accordingly, his opinions are not probative and are outweighed by the medical evidence of record noted above. (Continued on next page) In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for hypertension. The benefit of the doubt doctrine is not for application and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Connor, 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.