Citation Nr: 21073601 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 14-14 311 DATE: December 9, 2021 ORDER Service connection for hypertension is denied. REMANDED Entitlement to service connection for a low back disability. Entitlement to service connection for a cervical spine disability. FINDING OF FACT A current diagnosis of hypertension was not demonstrated in or related to an occurrence during active service and did not manifest to a compensable degree within one year of separation from service or noted to be chronic during service. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1131, 1137 (2018); 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a) (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1976 to May 1977. In November 2015, June 2019, and April 2020, the Board remanded the issue of service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), for additional evidentiary development. The issue of service connection for PTSD was granted in an October 2020 VA rating decision, which represents a full grant of the benefits sought so it is no longer on appeal before the Board. In November 2015, June 2019, April 2020, and April 2021, the Board remanded the issues of service connection for a low back disability, cervical spine disability, and hypertension for additional evidentiary development. These remaining issues on appeal have been returned to the Board for appellate review. There was substantial compliance with the November 2015, June 2019, April 2020, and April 2021 remand directives for the issue of service connection for hypertension discussed below on the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, outstanding service examination report and report of medical history, both at the time of entry to service, were obtained and associated with the record in November 2015. In a January 2021 note of unavailability, VA was informed that the requested treatment records from the Orlando Naval Hospital had been archived at the National Personnel Records Center (NPRC) after the hospital. Nevertheless, VA was previously informed from NPRC that the records had been retired to Code 13, thus the Board finds these records are unavailable or lost. Most recently, the Veteran was provided a VA Disability Benefits Questionnaire (DBQ) examination and medical opinion for hypertension in May 2021, which are adequate as they were based on a review of the history, examination, and sufficient information was provided to allow the Board to render an informed determination. The issue was also readjudicated in March 2019, January 2020, January 2021, and June 2021 supplemental statements of the case (SSOCs). The Board acknowledges the Veteran's representative asserted in an August 2021 brief that the VA examiner's negative nexus opinions regarding service connection are based on the lack of documentation in the Veteran's available service treatment records. The Board notes that review of the May 2021 VA medical opinion reflects the VA examiner's conclusion regarding hypertension was not solely based on the lack of documentation in the Veteran's available service treatment records. Neither the Veteran nor his representative have raised any other issues with the duty to notify or duty to assist with regards to the issue of service connection for hypertension discussed below on the merits. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to service connection for hypertension Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. § 1131. An injury or disease having occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the provisions of 38 C.F.R. § 3.303(b) apply only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a)). Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection can also be established through application of statutory presumptions, including for "chronic diseases," such as hypertension, when manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For VA purposes, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Hypertension is demonstrated when the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension is demonstrated when the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. Id. The Veteran has a current diagnosis of hypertension during the appeal period, as noted in the May 2021 VA DBQ examination report for hypertension. As a result, the Board finds the element of a current disability has been met in this case. Neither the Veteran nor review of the available service treatment records indicate an occurrence or diagnosis of hypertension during active military service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(d). Review of the Veteran's available service treatment records shows that evaluation at the time of entrance to his period of service did not reveal any vascular abnormality. On an enlistment examination report dated in February 1976, his vascular evaluation was recorded as normal, and his blood pressure reading was 120 over 70 while sitting. He also explicitly denied any history of high or low blood pressure in the accompanying report of medical history. Review of these records therein are silent for, nor does the Veteran assert, any complaints or treatment for hypertension during his period of active service. Furthermore, the Veteran has not asserted direct service connection and has not provided lay evidence in support of this theory. Review of VA treatment records shows documentation for an assessment of hypertension in January 2011, active medication for blood pressure in January 2011, and hypertension was listed on the Veteran's active problem list in February 2011. Review of Social Security Administration (SSA) records also shows documentation of hypertension as a recent diagnosis in a March 2011 examination report completed by Dr. S.M. At the May 2021 VA DBQ examination for hypertension, the Veteran reported he was diagnosed with hypertension in 2011 at a VA treatment facility and treated with medication for hypertension. Following a review of the claims file and in-person examination, the May 2021 VA examiner opined that it is less likely than not that the Veteran's hypertension was directly causally related to his active military service. The examiner explained, in part, that there was no documentation in the available service treatment records that he had an elevated blood pressure, was diagnosed with hypertension, or was treated for hypertension; there was no documentation in the available medical treatment records that that he had an elevated blood pressure, was diagnosed with hypertension or treated for hypertension within a year of separation from active service; the March 2011 SSA record by Dr. S.M. was 34 years after separation from service; and the Veteran reported at the VA examination he was diagnosed with hypertension in 2011 which was 34 years after separation from service. Based on the evidence of record, there is no probative and competent evidence that demonstrates this current disorder was demonstrated in or related to an occurrence during active service. See 38 C.F.R. § 3.303. In sum, the Board finds that the evidentiary record does not contain positive probative evidence to establish that the criteria to establish service connection on a direct basis has been met. The Board also finds that the preponderance of the evidence is against finding that hypertension manifested to a compensable degree within one year of separation from active duty or was chronic during service. Neither review of the evidentiary record, nor the Veteran, asserts a continuity of hypertensive symptoms since separation from active service in May 1977. In fact, review of post-service treatment records reflect that the onset of hypertension was in 2011, which was multiple decades after separation from service. As a result, such evidence is not competent to establish the presence of hypertension within one year of separation from service. Accordingly, service connection for hypertension on a presumptive basis as a chronic disease is not warranted. See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). Moreover, in light of the onset of this disability after separation from service, the Board finds hypertension did not have onset during service to warrant service connection. See 38 C.F.R. § 3.303(d). In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against this claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a low back disability 2. Entitlement to service connection for a cervical spine disability Pursuant to the most recent Board remand in April 2021, VA DBQ examinations for back (thoracolumbar spine) and neck (cervical spine) conditions were provided as well as the May 2021 VA DBQ medical opinion addressing these claims on appeal. The Board finds the VA examiner used the incorrect evidentiary standard for determining a nexus between the currently diagnosed low back and cervical spine disabilities with an in-service occurrence. When VA undertakes to provide a VA medical opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, the Board finds that an addendum VA medical opinion is needed to clarify the etiology of the Veteran's low back and cervical spine disabilities on direct and presumptive bases as chronic diseases, The Board emphasizes that it is not determining whether or not the Veteran's statement of injury while participating in a high jump exercise during basic training is credible at this time, as the additional development set forth in the directives below could impact that determination. The matters are REMANDED for the following actions: 1. Return the Veteran's claims file to the examiner who conducted the May 2021 VA DBQ examinations for back (thoracolumbar spine) and neck (cervical spine) conditions and provided the May 2021 VA DBQ medical opinion so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination (physical or telehealth) is only required if deemed necessary by the examiner. For the purposes of this remand only, and for the limited purpose of conducting the examination and providing a medical opinion, the examiner should assume that the Veteran's statement in the February 2011 VA Form 21-4138 that he injured his back while participating in a high jump exercise during basic training is true. If there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's recollection is inconsistent with the principles of medical science and/or the evidence in this case. The examiner must opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's low back disability began during active service, is related to an incident of service (including consideration of his reported in-service injury while participating in a high jump exercise during basic training), or if symptoms of arthritis began within one year after discharge from active service. (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's cervical spine disability began during active service, is related to an incident of service (including consideration of his reported in-service injury while participating in a high jump exercise during basic training), or if symptoms of arthritis began within one year after discharge from active service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Then, review all examination reports and medical opinions provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. 3. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. J. GALLAGHER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, 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.