Citation Nr: 21072395 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 15-29 442 DATE: December 3, 2021 ORDER Service connection for hypertension is denied. Service connection for tremors and spasms is denied. FINDINGS OF FACT 1. The Veteran's hypertension was not shown in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The Veteran's hypertension is not secondary to service-connected posttraumatic stress disorder with unspecified anxiety disorder. 3. A current disease manifesting as tremors and spasms is not present. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for tremors and spasms have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1983 to February 1987, and from December 1987 to December 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The duty to notify in this case was satisfied by letters sent to the Veteran in May 2010 and June 2010. 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2016); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The claim was last adjudicated in September 2021. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In that regard, the Veteran's service treatment records, VA treatment records, private treatment records, and lay statements have been associated with the record. The record indicates that service treatment records are partially missing. Accordingly, the Board has a heightened duty to explain its findings and conclusions. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). VA afforded the Veteran with examination and obtained medical opinions in April 2021. Pursuant to a July 2021 Board remand, in August 2021, VA afforded the Veteran with examinations and obtained medical etiological opinions with respect to his hypertension and tremor/spasm claims. The VA examiner reviewed the evidence of record, considered the Veteran's history and statements, and rendered medical opinions based upon the facts of the case and the examiner's knowledge of medical principles. The examiner substantially addressed the items identified by the Board in the July 2021 Board remand directives. Therefore, the Board finds that the Veteran has been provided an adequate medical examination in conjunction with his claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the Board finds that the RO substantially complied with the Board's remand instructions. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) ("It is substantial compliance, not absolute compliance, that is required" under Stegall v. West) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection 1. Service connection for hypertension. The Veteran asserts that high blood pressure is a symptom of his anxiety. See June 2010 Statement in Support of Claim. In the September 2020 VA medical examination, the Veteran reported the onset of hypertension was during the Gulf War, when he felt dizzy and later got a checkup. He could not remember when he was diagnosed with hypertension. He reported using medication for hypertension in 2006, or so. In the August 2021 VA examination, the Veteran reported that hypertension began in 1991 and was discovered as a result of a routine blood pressure examination. He reported not having treatment in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of hypertension. Hypertension is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. The Board concludes, however, that hypertension was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Hypertension is defined as diastolic blood pressure predominately 90 mm or greater, and isolated systolic hypertension is defined as systolic blood pressure predominately 160 mm or greater, with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, Diagnostic Code 7101. The service treatment records available show blood pressure at the October 1987 examination for enlistment into the Veteran's second period of service was 110/80. On the October 1987 Report of Medical History, the Veteran denied high blood pressure. A July 1990 record for treatment of a 2-day headaches notes that there was no elevated blood pressure. An undated Report of Medical Examination labeled as "periodic" shows blood pressure was 112/80. On an October 1991 Health Questionnaire for Dental Treatment, the Veteran did not check the box for high blood pressure. A handwritten note on the form shows blood pressure was 100/70. On the October 1991 separation examination, blood pressure was 118/60. On the Report of Medical History at that time, the Veteran denied high blood pressure. Post-service treatment records show that in, December 2006, the Veteran's blood pressure was 106/78. In January 2007, blood pressure was 121/75. In May 2007, it was 130/90, however, a diagnosis of hypertension was not made. In July 2007, blood pressure was 122/86. In November 2007, the Veteran's blood pressure was 120/80. The medical history on these visits does not list hypertension or elevated blood pressures. Nor does it show treatment with hypertension medication. In February 2010, the Veteran attended his first treatment visit at a private provider. The Veteran's blood pressure was 189/109. The diagnosis was elevated blood pressure without hypertension. In March 2010, the Veteran was diagnosed with benign hypertension and started on medications. The Board finds these service treatment and private treatment records to be more credible and probative than the Veteran's recollections that hypertension began in 1991. The service treatment records are for the most probative period of the Veteran's service, which is the second period of service. They are highly reliable as they are written records of specific blood pressure measurements created at or near the time in question. They do not rely upon memory. For the same reason, the post-service private treatment records are highly reliable. The records show the Veteran's blood pressure readings were normal in 2006 and 2007, except on one occasion. He had no medical history of hypertension, and there is no note that he was prescribed medication for hypertension. The records shows that hypertension was first diagnosed in March 2010 and was started on medications. In these records, the Veteran does not express a history of having been previously diagnosed with hypertension or been on hypertensions medication. Furthermore, the Veteran's recollections as to the onset of hypertension are inconsistent. In the September 2020 VA medical examination, the Veteran reported the onset of hypertension was during the Gulf War, but he could not remember when he was diagnosed with hypertension. He could not remember when he was diagnosed with hypertension. In the August 2021 VA examination, the Veteran reported that hypertension began in 1991 and was discovered as a result of a routine blood pressure examination. His report that he began using medication for hypertension in 2006 is inconsistent with the private treatment records from 2006, 2007, and 2010. For these reasons, the preponderance of the evidence is against a finding that hypertension began in service or within one year of separation from service. Service connection for hypertension may still be granted on a direct basis; however, the preponderance of the evidence is against finding that there was an in-service incurrence. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. As discussed above, the service treatment records show normal blood pressure readings and elevated blood pressure readings were not shown until one occasion in 2007, and after that, in 2010. The Board now turns to the Veteran's main contention that hypertension is secondary to his posttraumatic stress disorder and unspecified anxiety disorder. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran's hypertension is proximately due to or the result of, or is aggravated beyond its natural progress by service-connected disability PTSD and anxiety disorder. The Board concludes that the preponderance of the evidence is against finding that the Veteran's hypertension is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The April 2021 VA examiner opined that hypertension is not proximately due to the Veteran's acquired psychiatric disorders. The examiner reasoned that a thorough review of the medical literature failed to demonstrate a causal relationship. The examiner also indicated that the Veteran's hypertension was related to his family history and African American race, which are risk factors for the development of hypertension. The August 2021 VA examiner opined that the Veteran's hypertension is less likely than not aggravated PTSD and unspecified anxiety disorder. The examiner reasoned that, according to medical literature, anxiety does not cause long-term high blood pressure (hypertension). But episodes of anxiety can cause dramatic, temporary spikes in blood pressure. Once the anxious episode or the stressful situation passes, the blood pressure lowers or normalizes. The examiner found this to be what happened to the Veteran in February 2010. As per that 2010 private treatment record, the Veteran reported experiencing a "high level of stress from carrying the family financially for a while," feeling overwhelmed and having low energy. In fact, all of the times the veteran experienced an elevated blood pressure, it was associated with the Veteran undergoing/facing a stressful situation, including: in October 2011 private treatment record reflecting high stress as his son was not doing well in school; in January 2012 when he was moving out of his house in two weeks, had a court case pending regarding child support, and had a baby in the house; lastly in January 2013 when he had been in between jobs for the past two months. Although the note in January 2013 reported improved stress, but the stressors was still present and clearly had an effect on him. The examiner further reported that there is no proof that stress by itself causes long-term high blood pressure (https://www.mayoclinic.org/diseases-conditions/high-blood-pressure/in-depth/stress-and-high-blood-pressure/art-20044190). A temporary spike in blood pressure as a result of stress does not worsen a condition or cause a chronic condition. The examiner noted that "recent findings suggest that combat trauma induces stress, which in turn may increase blood pressure" (https://www.cardiosmart.org/news/2018/4/ptsd-increases-risk-of-hypertension-in-injured-soldiers). The examiner noted that a recent study of veterans published in March 2018 in the journal "Hypertension" found that experiencing a severe injury during war and then receiving a post-traumatic stress disorder diagnosis at a later point doubled the risk of high blood pressure, also called hypertension" (https://www.everydayhealth.com/hypertension/ptsd-hypertension-whats-connection/). The examiner found that the Veteran did not receive a severe injury. The examiner also pointed to the authors' note that further research is needed to confirm these associations. The Veteran believes his hypertension is proximately due to or aggravated beyond its natural progression by his acquired psychiatric disorder. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires skill in interpreting complex medical research studies and journal articles and applying them to the medical facts for the Veteran. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiners' opinions. Therefore, service connection is not warranted. 2. Service connection for tremors and spasms. The Veteran seeks service connection for tremors and spasms. In a June 2010 Statement in Support of the Claim, the Veteran reported that he began having headaches, involuntary muscle spasms, and tremors while serving in Kuwait in 1990. He indicated that when he returned home from Kuwait, he continued to experience tremors and uneasiness. See June 2010 Statement in Support of the Claim. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current disability manifest by tremors or spasms. The Veteran does not have a diagnosis of such a disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board acknowledges that symptoms alone may qualify as a disability if they reach the level of functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. As will be shown below, the Veteran's symptoms are not shown to be present to the frequency, severity or duration to cause functional impairment of earnings capacity. Additionally, the symptoms appear to be a symptom of the Veteran's acquired psychiatric disorder, for which he is in receipt of a 70 percent rating. On this record, the September 2020 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of muscle spasms/tremors around the stomach area, he did not have a diagnosis of a central nervous system disorder. The August 2021 VA examiner found no objective evidence of involuntary spasms, tremors, and/or twitching on the examination. The examiner stated that the Veteran reported the symptom occurs in the hand, bilaterally, however, through observation and examination there was no evidence of shaking upon intention or postural. Furthermore, there is no evidence supporting such condition other than the Veteran's statements, which the examiner found were inconsistent. The examiner found that because of the inconsistency, lack of assessment, management and/or treatment for this condition, and lack of observable signs, it cannot be confirmed. The examiner further reasoned that his spouse's lay statement do not mention tremors or spasms when describing the Veteran's other symptoms. The examiner noted that tremors are visually present and that he Veteran stated his hands are affected with rhythmic trembling at a fixed frequency. It would be noticeable and memorable. The examiner stated that "[c]ertainly, the Veteran's wife would have reported/documented that in her statement." The examiner stated that the Veteran's wife observed anxiousness or nervousness and not tremors. Finally, the September 2020 VA mental health disorders examiner indicated the symptoms of muscle spasms during deployment were symptoms of his anxiety disorder. Thus, they would be contemplated in the Veteran's 70 percent rating for PTSD and anxiety disorder. This is corroborated by the Veteran's November 2020 PTSD stressor statement showing that, while deployed, he was given orders to go to contaminated area. This triggered several episodes with rapid heartbeats, shortness of breath, and shaking uncontrollably. While the Veteran believes he has a current diagnosis of a muscle spasm or tremor disorder, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education to identify signs and symptoms on clinical evaluation and attribute them to an injury or disease. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The preponderance of the evidence does not show that the Veteran has a disability manifested by spasm or tremor. Additionally, he has not shown that he has spasms or tremors that cause functional impairment of earning capacity. Service connection for tremors and spasms is denied. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Rocktashel, 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.