Citation Nr: 21005269 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 14-28 526 DATE: February 1, 2021 ORDER Entitlement to service connection for hypertension is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s hypertension had its onset in service or was proximately caused or aggravated by a service-connected condition. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1131, 1133, 5107; 38 C.F.R. §§ 3.102, 3.103, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1977 to July 1980. This matter comes to the Board of Veterans’ Appeals (Board) from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2018 the Board remanded the Veteran’s claim for further development. The required development has been completed and the matter is properly before the Board at this time. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). In July 2016, the Veteran testified at hearing before a Decision Review Officer (DRO). A transcript of the hearing is associated with the claims file and has been reviewed. Entitlement to service connection for hypertension At the outset, the Board notes that the Veteran has been diagnosed with hypertension, with the first medical evidence showing onset in 2008, about 28 years after service. See ApexCare Private Medical Treatment Records July 25, 2008; see also VA Examination July 2019. The Veteran contends that he was told at his military separation medical examination he had high blood pressure at the time he separated from active duty service in 1980. See DRO Hearing Transcript July 2016. Furthermore, the Veteran contends that he was required to go on blood pressure medication in order to begin working at his new place of employment within 1 month after leaving service in 1980. Id. Alternatively, the Veteran contends that his hypertension condition is proximately due to or aggravated by his noncompensable service-connected herpes condition. Id. In order to establish service connection for a claimed disorder, the following must be shown: (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, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). 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). Service connection for certain chronic diseases, including hypertension, 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(3), 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Alternatively, when a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To be “shown in service,” the disease identity must be established, and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b). However, if a condition is not noted during service, then generally a showing of continuity of symptomatology after service is required for service connection, if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran was afforded a VA examination for hypertension in July 2019. The examiner confirmed the Veteran has hypertension with a diagnosis in 2008. The Veteran reported having high blood pressure and being prescribed medication since service. After examining the Veteran, his lay statements and a detailed review of the Veteran’s medical history and records, along with citing to the Merck Manual (Professional Version), the examiner opined that the Veteran’s hypertension was less likely than not a result of his active service. In support, the examiner noted that the Veteran’s records were silent for a diagnosis of hypertension during service or immediately thereafter and opined that the Veteran’s etiology for the diagnosis of hypertension is most likely due to his genetic predisposition and lifestyle choices. Likewise, the examiner opined that it was less likely than not that the Veteran’s hypertension was proximately caused by, or aggravated beyond its natural progression, by the Veteran’s service-connected herpes condition. In support, the examiner reported that there are no research studies tending to demonstrate that suffering from the herpes virus can cause inflammation of the blood vessels, leading to hypertension. Further, the examiner stated that the pathophysiology of the herpes virus and hypertension is dramatically different. Herpes infections involve inflammation in the nerve ganglia, whereas hypertension is caused by the constriction of the arteries. The examiner was of the opinion that it is medically impossible for the herpes virus to cause hypertension. Further review of the Veteran’s remaining VA and private treatment records show the Veteran has had elevated blood pressure readings since 2008, a diagnosis of hypertension, and a family history of hypertension. Importantly, there are no medical records prior to 2008 showing diagnosis or treatment for hypertension for this Veteran, about a 28 year gap. The Board notes that it has considered whether direct service connection for hypertension is warranted in this case and finds there is no basis for such a finding. Service treatment records show that the Veteran had a minimally elevated systolic blood pressure reading of 132 and a diastolic reading within normal limits prior to entering active duty service. See Entrance Physical Examination December 1976. However, there is no evidence of in-service treatment or diagnosis for hypertension at any time during the Veteran’s military service based on the record before the Board. Indeed, the Veteran’s contention that hypertension had an in-service onset is rooted in his statement that he was told he had high blood pressure upon exiting the military in 1980. See DRO Hearing Transcript July 2016. However, the service treatment records do not contain evidence of a separation physical examination for this Veteran and no other records support the Veteran’s contention that he had a medical diagnosis of hypertension while he was in service. With regard to the non-existent separation medical examination from the Veteran’s service record, the Board does not feel a remand is warranted in this case. The Board finds that all procedures to obtain the Veteran’s service treatment records were correctly followed, and further attempts to obtain any missing records would be futile. See 38 C.F.R. § 3.159(c)(2). The RO requested the Veteran’s service treatment records in May 2012 and certification of the Veteran’s records returned showed that all available service medical records were in fact mailed to VA upon this request. Based on the above, the Board finds there is no basis to remand this case to find a medical record from 40 years ago that is not in the Veteran’s service record file. Importantly, there is no other basis to find that the Veteran’s current hypertension is directly related to his military service and entitlement to service connection for hypertension on a direct basis is not warranted in this case. The Veteran stated that he was required to go on medication to control his high blood pressure in order to begin working at a new job approximately one month after leaving active duty service in 1980. See DRO Hearing Transcript July 2016. The Veteran further reported that the company he worked for at that time no longer exists and he is unable to recall the name of the doctor that put him on the blood pressure medication and is otherwise unable to locate any private records related to his claimed hypertension condition prior to 2008. The Board notes there are no records showing hypertension was present within one year of the Veteran’s July 1980 discharge. In this regard, the Veteran has not shown to be a good historian of his records, where he indicated being on medication for hypertension since 1980, yet offers no records or evidence showing a diagnosis of hypertension or that medication was used to control hypertension until 2008, almost 30 years after leaving service. Importantly, if the Veteran had been put on medication in 1980, there should be some record across the span of the nearly 30-year time period, between 1980 and 2008, of a diagnosis and/or treatment for hypertension. However, no records were submitted by the Veteran to show treatment for hypertension prior to 2008, which is almost 30 years after leaving service. The post-service treatment records provide particularly negative evidence against this claim. Therefore, the Board finds there is insufficient evidence to warrant a finding of presumptive service connection under 38 C.F.R. § 3.309 for a chronic disease, nor is there evidence showing continuity of symptomatology, where the first medical evidence of hypertension is in 2008, 30 years after serving on active duty. The Veteran has also maintained, at later times in his appeal, that his hypertension was caused by his service-connected herpes condition. See e.g., DRO Hearing Transcript July 2016. This contention is very inconsistent with the prior contention that he has had this problem since 1980 and undermines the Veteran’s reliability as a historian of his disability. The Veteran has been service connected for herpes since June 2013. Essentially, the Veteran states that the stress related to him having herpes in service caused his hypertension condition. Id. In support of his claim, the Veteran has not pointed to any evidence purporting to show a connection between herpes and hypertension. The Veteran offers no other explanation other than his own lay statements to support an etiological relationship between herpes and hypertension. By contrast, the July 2019 VA examiner opined that it was medically impossible for the herpes virus to cause hypertension. There is simply nothing that supports this medical theory. It is important for the Veteran to understand that while he is competent to describe observable symptoms, he is not competent to relate a medical diagnosis of hypertension to his military service, or to another service-connected condition such as herpes, as he is not shown to possess the requisite medical knowledge, training, or experience to do so. Therefore, the Board finds that the Veteran’s lay statements relating his herpes and his hypertension provides little probative value in this case. Significantly, there is no competent medical opinion of record linking the Veteran’s diagnosis of hypertension to his service-connected herpes. There is evidence against such a finding. In this claim, the Board accords more weight to the opinion of the July 2019 VA examiner and the Veteran offers no other medical evidence to support his contentions. The examiner provided detailed rationales that considered the Veteran’s service records, treatment records and lay statements. The July 2019 VA opinion is supported by more compelling rationale, detailed clinical interviews, a thorough review of the Veteran’s record, relevant history and medical journals. Based on a comprehensive review of the record, the Board finds that the VA examiner’s opinion is highly probative in the instant claim. Significantly, there is no probative competent medical opinion of record to the contrary. Consequently, the Board finds that the weight of the evidence is against a finding of service connection for hypertension, to include as secondary to the Veteran’s service-connected herpes. In this case, the medical findings provide highly probative evidence against the claim that the Board cannot, unfortunately, ignore. These findings provide a clear basis for the opinion against the Veteran’s claim. 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 claim, that doctrine is not applicable. 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49, 54-56. Therefore, entitlement to service connection for hypertension, to include on a presumptive and/or secondary basis, is denied. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Davidson 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.