Citation Nr: 21072308 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 19-31 872 DATE: December 2, 2021 ORDER Entitlement to service connection for hypertension is denied. REMANDED Entitlement to service connection for a back disability, including spinal stenosis, spinal fusion, discogenic pain syndrome, and degenerative arthritis of the spine, is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's hypertension began during active service, manifest to a compensable degree within one year of discharge, or is 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. § § 1110, 1131, 5107; 38 C.F.R. § § 3.102, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Navy from February 1966 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). In March 2020, the Board remanded these matters for additional development. They have returned to the Board for further appellate review. As a preliminary matter, the Board recognizes the Veteran's reported difficulties in obtaining old medical records regarding his conditions. The Board notes that the Veteran's claims were first filed nearly 50 years after separation from service. Service Connection Service connection may be established 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. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Additionally, service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. § § 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was "noted" during service; (2) post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1340. If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker at 1336; 38 C.F.R. § 3.303(b). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); Ward v. Wilkie, 31 Vet. App. 233 (2019) (holding that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability)). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability. Degmetich v. Brown, 104 F. 3d 1328 (1997). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Entitlement to service connection for hypertension. The Veteran contends that his currently diagnosed hypertension had its onset during service. The Veteran also contends that his hypertension is related to back injuries incurred in service while moving heavy and awkward equipment. For VA purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater. The term isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. Under DC 7101, hypertension is compensable for an individual with diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or a history of diastolic pressure predominantly 100 or more that requires continuous medication for control. 38 C.F.R. § 4.104. The Veteran's service treatment records show that he sought medical treatment in July 1968. The Veteran complained that he was having difficulty sleeping and was concerned about high blood pressure. The Veteran's blood pressure was recorded as 122/84. The examining physician did not diagnose the Veteran with high blood pressure or hypertension, noting that the Veteran's blood pressure was approximately 120/80. The physician noted that the Veteran's wife was expecting their first child at the end of the month and that the Veteran was denied leave. The physician stated that the Veteran has some trouble getting to sleep and staying asleep. The physician recommended treatment with phenobarbital, exercise, hot showers, and hobbies. The Veteran's in-service examination and treatment records show that the following blood pressure readings for the Veteran: 110/72 in November 1965, 116/68 in February 1966, 120/80 in May 1968, 122/84 in July 1968, 120/84 in July 1968, 118/78 in February 1968, 124/88 in August 1968, and 126/92 in October 1969. The Veteran's post-service treatment records show that the Veteran was diagnosed and treated for hypertension as early as December 2015. The available record does not show a diagnosis for hypertension prior to December 2015. The Veteran's post-service treatment records also show the following blood pressure readings: 110/70 in February 1997 and 133/85 in September 2012. Prior to filing his application, the Veteran obtained a June 2018 nexus statement from a private physician regarding all his claimed conditions. The physician found that the Veteran's hypertension, back conditions, kidney disease, coronary artery disease, and cerebral vascular accident were most likely caused by or a result of military service. A rational for this opinion was not provided. The physician only stated that the physical and emotional stress contributed to the development of hypertension, back conditions, kidney disease, coronary artery disease, and cerebral vascular accident. The physician did not provide any further analysis, explanation, or rational regarding his nexus opinion. The physician also indicated that he did not review the Veteran's service treatment records. In February 2019, the Veteran obtained a letter from his treating cardiologist regarding service connection for his claimed disabilities. The physician stated that the Veteran told him that he developed high blood pressure and degenerative joint disease from moving heavy beds and furniture during service. The physician also stated that the Veteran believes that his arthritic pain exacerbated his high blood pressure. The physician found that there is a greater than 50 percent chance that his hypertension and ultimate atherosclerotic vascular disease may be service connected. The physician did not provide a rational for the opinion. Pursuant to the March 2020 Board remand and in consideration of the two statements from his physicians, the Veteran was provided VA examination for hypertension in May 2020 to fully address this issue. The examiner diagnosed the Veteran with hypertension. The Veteran reported that he developed hypertension and back pain during active service in 1968. The examiner found that it is less likely than not that the Veteran's hypertension was incurred in service or caused by injuries sustained during service while moving heavy and awkward equipment. The examiner listed the Veteran's in-service blood pressure readings and found that the medical records do not support a finding of high blood pressure during service. The examiner discussed the February 2019 letter from the Veteran's cardiologist and noted that the cardiologist simply repeated that Veteran's assertion that he had developed hypertension during service. The examiner addressed the Veteran's post-service treatment records, noting his blood pressure readings and the history of medications used to treat his hypertension. The examiner did not find evidence of hypertension in service and did not find evidence of continuing symptoms of hypertension in the years following service discharge. The examiner found that it is less likely than not that the Veteran's high blood pressure is related to service. As an initial matter, the Board notes that the record does not show hypertension to a compensable degree within one year of the Veteran's separation from service in 1969. 38 C.F.R. § 4.104, DC 7101. Rather, the record shows that the Veteran was diagnosed with hypertension until many years after service. Thus, service connection for hypertension cannot be established on a presumptive basis. 38 U.S.C. § 1112 (a); 38 C.F.R. § § 3.307, 3.309(a). As to service connection based on a direct or secondary basis, the Board has carefully reviewed the Veteran's treatment records, statements, and submissions. As discussed above, the Veteran obtained two statements from private physicians in support of his claim. However, the Board finds that both statements are inadequate for purposes of establishing a causal relationship or nexus between the Veteran's hypertension and service. Specifically, there is no indication that the private physicians reviewed the Veteran's service treatment records, addressed any objective medical evidence, or provided any substantive rationale or analysis for their conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A mere conclusion without an underlying rationale is of no probative value. See Miller v. West, 11 Vet. App. 345 (1998). Therefore, as these opinions contain no rationale, they provide an insufficient basis upon which to decide the Veteran's claim. In contrast, the May 2020 VA examination and etiological opinion were supported by a compelling rationale; a detailed clinical interview; and a thorough review of the Veteran's record, relevant medical history, and, most importantly, the Veteran's own statements. The examiner's opinion is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Therefore, the Board finds that the May 2020 VA examination is probative as to whether the Veteran's hypertension was incurred in, caused by, or otherwise related to service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). It is important for the Veteran to understand that the findings from the May 2020 VA examination provide highly probative evidence against the claim that the Board cannot, unfortunately, ignore. These findings provide a clear basis for the opinion. To the extent the Veteran's statements are being offered to establish a nexus, such evidence fails because this determination is a complex medical matter beyond the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran has not been shown to possess specialized training sufficient to render such an opinion. Accordingly, the Veteran's assertions as to a relationship between his hypertension, diagnosed many years after service, and service are of little probative value. The Board acknowledges that the Veteran is competent to report the circumstances of his service and the symptoms he experiences. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). The Board also finds him credible in that regard. Therefore, the Veteran's statements regarding the circumstance of his service and observable symptoms have been carefully considered by the Board and addressed in the May 2020 VA examination. Again, there is no competent and probative evidence to show that the Veteran had hypertension in service or within one year following discharge from service, or for many years after service. Moreover, there is no competent and probative evidence to show that the Veteran's hypertension is otherwise related to service. Given the foregoing, the Board finds that the preponderance of the probative evidence is against the claim for service connection for a hypertension, and that the claim must be denied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND Entitlement to service connection for a back disability, including spinal stenosis and discogenic pain syndrome. The Veteran contends that his currently diagnosed back disability is related to back injuries sustained during active service while moving heavy and awkward equipment. The Veteran's service treatment records show that he was treated for back pain in September 1966. The record stated that the Veteran was admitted to the hospital ward with a one-day history of back pain with nausea, vomiting, and frequent urination. Physical examination revealed generalized abdominal tenderness. The Veteran was placed in the ward for bed rest, given aspirin, and discharged to duty on the second day. In the June 2018 nexus statement, the Veteran's private physician found that the Veteran's lumbar spine stenosis, discogenic pain syndrome, and hypertension are most likely caused by or a result of military service. A rationale for this opinion was not provided. The physician simply stated that the physical trauma sustained in the course of duty contributed toward the Veteran's lumbar spine stenosis and discogenic pain syndrome. No further analysis or rational was provided. In February 2019, the Veteran obtained a letter from his treating cardiologist regarding service connection for his claimed disabilities. The cardiologist noted that the Veteran reported that he developed degenerative joint disease from moving heavy beds and furniture during service. However, the cardiologist did not provide an opinion as to a nexus between the Veteran's back conditions and service. Pursuant to the March 2020 Board remand and in consideration of the two statements from his physicians, the Veteran was provided a VA examination for back conditions in August 2020 to fully address these issues. The Veteran was diagnosed with degenerative arthritis of the spine, spinal fusion, and spinal stenosis. During the clinical interview, the Veteran stated that he injured his back in 1967 while moving bunks and mattresses. The Veteran stated that he was pretty sure that he went to the doctor during service, but that the doctor did not write anything down. The Veteran could not remember whether he was examined during this visit. The Veteran reported that he saw a doctor following service and received lumbar fusions in 2009 and 2018. The examiner found that the Veteran's back conditions, including spinal stenosis and discogenic pain syndrome, are less likely than not incurred in service or caused by the claimed injuries sustained from moving heavy and awkward equipment during service. The rationale provided by the examiner was based primarily on the inaccurate fact that there were no objective medical records available showing that the Veteran treated for back pain during service. However, as discussed above, the Veteran's service records show that the Veteran was admitted to a hospital ward and held overnight due to a back injury. Considering its heavy reliance on an inaccurate factual premise, the Board finds that the VA examination was not adequate and that a remand is required to obtain an addendum medical opinion. See 38 U.S.C. § 5103(a); Barr v. Nicholson, 21 Vet. App. 31 (once VA undertakes the effort to provide an examination when developing a claim for service connection, even if not statutorily obligated to do so, it must provide an adequate one). The matters are REMANDED for the following action: 1. Obtain the Veteran's updated VA treatment records and associate them with the evidence of record. If possible, the Veteran himself should submit these records (if any), and any other new treatment records for these problems, himself, to expedite the case. Any assistance on this issue would be appreciated. 2. Obtain an opinion from an appropriate clinician to determine the nature and etiology of the Veteran's back conditions, including spinal stenosis, spinal fusion, discogenic pain syndrome, and degenerative arthritis of the spine. Specifically, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that his back conditions had their onset during service or are otherwise related to active service. A complete rationale for any opinions expressed should be provided. The report should set forth all complaints, findings, and diagnoses relating to the Veteran's back conditions and provide a rationale for all conclusions reached. (Continued on the next page) If the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 3. After completion of the aforementioned, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted, then the AOJ should provide the Veteran with a supplemental statement of the case and afford him the appropriate opportunity to respond thereto. Thereafter, the case must be returned to the Board for further appellate review. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. VanValkenburg, 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.