Citation Nr: 21005260 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 14-00 145 DATE: February 1, 2021 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for an eye disability as secondary to hypertension is denied. INTRODUCTION The Veteran served on active duty from November 1980 to February 1984, with additional periods of service in the Florida Army National Guard from February 1984 to December 2000. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. These claims were most recently remanded in November 2019, for additional development. After the issuance of an August 2020 supplemental statement of the case, the appeal was remitted to the Board for further appellate review. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that hypertension began during active service, or is otherwise related to an in-service injury or disease. 2. The Veteran’s eye disability is not secondary to service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. 2. The criteria for service connection for an eye disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts that his hypertension onset during his period of active duty from November 1980 to February 1984, or is otherwise due to that period of service. He claims that treatment for headaches during this period demonstrates the presence of hypertension. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The evidence of record includes current diagnoses of hypertension. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). As such, this aspect of service connection is established. The Veteran’s service treatment records, dating from November 1980 to February 1984, are negative for complaints of or treatment for hypertension. While this evidence shows that he was treated for headaches, no blood pressure readings were contemporaneously obtained, and no medical professional determined that the cause of the Veteran’s headaches was hypertension. The Veteran was provided VA examinations during the pendency of this appeal. In September 2018, a VA examiner opined: [I]t is not at least as likely as not (a 50 percent probability or greater) that the Veteran’s hypertension was incurred in or due to his active duty (i.e., November 1980 to February 1984). Rationale: no objective evidence of diagnosis/treatment for [hypertension] was found documented on currently available [active duty service treatment records]. In December 2019, a second VA examiner opined as follows: Headaches can be a symptom of hypertension, in order to prove that this in the case with this Veteran, the blood pressures would have needed to be checked during the headaches. That information is unavailable. Blood pressure during the period requested were normal. August 11th 1980 – had complaints of headache, but his blood pressure during that time (November 1980 to February 1984) were normal. There are other periods of elevated blood pressures that were recorded as noted- Report of Medical history exam marked as received on March 7th 1988 blood pressure was 180/60, September 15th 1998- Blood pressures were elevated- 166/100, 169/88, Magruder Eye Institute, office visit April 3rd 2000- 158/86 [hypertension]. The record did not include other competent evidence demonstrating that the Veteran’s hypertension was incurred in or due to his active duty. In this, and in other cases, the Board may not base a decision on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Thus, the only competent and credible opinions as to whether the Veteran’s hypertension onset during his period of active duty from November 1980 to February 1984, are negative to his claim. To the extent that the Veteran claims that his hypertension was incurred in or due to his active duty, his assertions of not considered competent evidence. As a lay person, the Veteran has not shown that he has specialized training sufficient to render diagnostic or etiological opinions. Accordingly, his assertions on such matters are not competent evidence because such a question requires medical expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). While the Veteran’s statements are competent as to experiencing in-service headaches, such statements are not competent evidence that those headaches were due to hypertension. Id. As such, service connection for hypertension is not warranted on a direct basis. Service connection may be awarded where the evidence shows that a Veteran had a chronic condition in service or during an applicable presumptive period and still has the condition. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Certain disabilities are presumed to have been incurred in service if manifested to a compensable degree within one year after service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. The continuity of symptomatology language in § 3.303(b) is limited to the chronic diseases listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The provisions regarding presumptive service connection listed under 38 C.F.R. § 3.309(a) apply in this matter as hypertension is listed under 38 C.F.R. § 3.309(a). Throughout the pendency of this appeal, the Veteran asserted and testified that, immediately following his period of active duty from November 1980 to February 1984, he sought treatment for hypertension at a VA medical facility. The Veteran did not submit, and VA was not otherwise able to obtain evidence demonstrating such treatment. Significantly, the Veteran enlisted in the Florida Army National Guard immediately following his period of active duty. Pursuant to this enlistment, the Veteran underwent an enlistment examination in March 1984. This enlistment examination revealed blood pressure of 124/68. The examiner did not provide a diagnosis of hypertension, and the Veteran did not report high blood pressure or hypertension during the examination. Moreover, a March 1984 Report of Medical History shows that he specifically denied “high or low blood pressure.” Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that contemporaneous evidence has greater probative value than history as reported by a veteran). The Board finds that the Veteran’s assertions as to the presence of compensable hypertension within one year of his February 1984 separation are not competent or credible evidence. See Jandreau, 492 F.3d at 1376-77. Consequently, service connection for hypertension are not warranted on a presumptive basis. Finally, the Veteran asserts that his hypertension onset during a period of Florida Army National Guard service. As defined by statute and regulation, active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a), (d). ACDUTRA includes full-time duty performed for training purposes by members of the National Guard of any state. 38 U.S.C. §§ 101(22), 316, 502, 503, 504, 505; 38 C.F.R. § 3.6(c)(3). Presumptive periods do not apply to ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Hypertension is considered a disease and, thus, service connection based on the Veteran’s Florida Army National Guard duty is limited to his periods of ACDUTRA. Beyond the enlistment examination discussed above, the Veteran’s Florida Army National Guard records included blood pressure readings of 100/60 in February 1988 and 110/80 in September 1991. May 1996 and May 1997 periodic examinations revealed blood pressure of 148/96, but no diagnosis of hypertension was rendered on either occasion. In December 2000, a National Guard record revealed a history of high blood pressure. VA treatment records demonstrated that the Veteran’s blood pressure was 118/74 in November 1985, 114/70 in March 1988, 116/72 in August 1988, and 100/70 in March 1989. In September 1998, the Veteran’s blood pressure was 150/80, 156/96, 166/100, and 168/88. Thereafter, VA treatment records reveal diagnoses of hypertension, for which he was prescribed medication. Although the Veteran’s service personnel records show that he served on several periods of ACDUTRA in the Florida Army National Guard, the associated treatment records do not indicate that his current hypertension onset or was aggravated during one these periods, especially considering the presumptions do not apply. Id. The Veteran’s assertions that this hypertension onset or were aggravated by a period of ACDUTRA is not considered competent evidence, and the evidence of record is otherwise negative for evidence onset or aggravation of hypertension during a period of ACDUTRA. See Jandreau, 492 F.3d at 1376-77. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply. Accordingly, service connection for hypertension is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). With respect to his eye disability, the evidence of record demonstrates that it has been diagnosed as hypertensive retinopathy and retinal scarring. The Veteran asserts that his eye disability is secondary to his hypertension. See Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008) (holding that VA must consider all possible theories of entitlement raised by the claimant or the evidence of record). Service connection may be established on a secondary basis for a disability, which is proximately due to, the result of, or chronically aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran is seeking service connection for eye disability on a secondary basis with respect to his hypertension. Service connection has not been granted for hypertension and, thus, service connection for an eye disability secondary to hypertension is denied as a matter of law. 38 C.F.R. § 3.310; Sabonis v. Brown, 6 Vet. App. 426 (1994). T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean G. Pflugner, 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.