Citation Nr: 21005810 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 12-21 193A DATE: February 2, 2021 ORDER Entitlement to service connection for hypertension is denied. FINDING OF FACT The most probative evidence reflects that the Veteran’s hypertension did not have its onset during service, did not meet the criteria for a 10 percent evaluation during his initial post-service year, and is not related to any incident of service. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1973 to January 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In November 2018, the Court of Appeals for Veterans Claims (Court) vacated a March 2017 Board decision on this claim, finding that the Board failed to provide adequate reasons and bases in its findings. The Court remanded the claim for readjudication consistent with the decision. The Board remanded this claim in June 2019 and October 2020 for compliance with the November 2018 Court decision. 1. Entitlement to service connection for hypertension is denied. Service connection will generally be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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 on a direct basis, the evidence must show (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 252 (1999). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including hypertension, service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation, or for conditions noted during service (or in a presumptive period) but not shown to be chronic at the time, by showing a continuity of symptomatology after service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (2012). When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from service, will be service connected unless clearly attributable to causes unrelated to service ("intercurrent" causes). 38 C.F.R. § 3.303(b). In addition, where a veteran served continuously for 90 days or more during a period of war, or after December 31, 1946, there is a presumption of service for chronic diseases that manifest to a degree of 10 percent or more within one year from the date of separation from service (with some exceptions not applicable here), even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim with be granted). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Veteran asserts that his hypertension is etiologically related to his active service. Specifically, he asserts that his Service Treatment Records (STRs) should show elevated blood pressure readings. See September 2009 Statement in Support of Claim. He has a current diagnosis of hypertension. See November 2019 VA Examination. Thus, the Veteran has a current disability and the first element of service connection has been met. As discussed above, the Veteran states that his current hypertension can be traced back to elevated blood pressure readings during active service. A January 1975 record shows that he was treated for a headache, stuffy nose, and coughing and that his blood pressure was 140/80. See January 1975 STR. VA regulation provides, in pertinent part, that hypertension is established when diastolic blood pressure is predominately 90mm or higher. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). The Court noted that that the medical community has defined hypertension as high arterial blood pressure with a minimum threshold of 140mm for systolic blood pressure and 90mm for diastolic blood pressure. Duenas v. Principi, 18 Vet. App. 512, 519 (2004). While the Veteran’s January 1975 blood pressure reading would not be considered high blood pressure under VA standards, it would at least be considered elevated. Thus, an in-service injury can be found to have occurred. Additionally, a July 1974 medical record reflects that the Veteran sought treatment for chest pain while walking and breathing and had dull pain over his sternum region. See July 1974 STR. The Veteran’s representative asserts that this may also have been a symptom of the Veteran’s hypertension that manifested during active service. See June 2019 Appellate Brief. In light of recorded treatments in the Veteran’s STRs, the Board finds that the second element of service connection has been met - incurrence of a disease or injury in service. Concerning the third element of service connection, the nexus requirement, the Veteran was given a VA examination in November 2019, where the VA examiner stated that it was less likely than not that the Veteran’s current hypertension was incurred in or caused by service. The VA examiner explained that the Veteran’s separation physical in 1976 was silent for hypertension. He also noted that there was no record of active hypertension during active duty in the Veteran’s medical records. In regard to the Veteran’s in-service chest pain in July 1974, the VA examiner stated that that was attributable to heartburn/gastritis. The VA examiner noted the Veteran’s January 1975 elevated blood pressure reading of 140/80, but stated that the CDC considers hypertension to be a blood pressure reading of 140/90 or greater, and therefore the Veteran’s in-service blood pressure did not meet the criteria for a diagnosis of hypertension. The VA examiner further stated that the VA’s criteria for hypertension is a blood pressure reading of 160/90 or greater, and the Veteran did not meet that criteria in service either; instead, private records from 2005 and 2006 documented the Veteran with hypertension. At the Board’s direction, the November 2019 VA examiner offered an addendum opinion in October 2020, where he again stated that the Veteran’s July 1974 record of chest pain was associated with heartburn, and that the Veteran’s January 1975 blood pressure reading of 140/80 does not warrant a diagnosis of hypertension. The Board finds the November 2019 VA examiner’s opinion that the Veteran’s hypertension is less likely than not related to service probative. In this regard, the Board notes that the July 1974 report of chest pain was indeed attributed to “gastritis” in his STR; the military doctor also noted that the Veteran was a smoker, smoking one pack of cigarettes a day for 12 years prior. In regard to the January 1975 blood pressure reading of 140/80, the Board concedes that this may be considered elevated blood pressure. However, it does not meet the criteria for hypertension under VA regulation. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). The Board notes that the Court has repeatedly stated that the requirements in Note (1) concern the diagnosis of hypertension, rather than a manifestation of hypertension. The Board therefore finds that the Veteran’s January 1975 reading could still be considered a manifestation of hypertension, as 140/80 may still be considered elevated. However, the Board finds that the Veteran’s January 1975 blood pressure reading was isolated in nature, as all of his other blood pressure readings, including his blood pressure at his entrance and exit examinations, were normal. (See December 1972 Entrance Examination showing blood pressure reading of 120/72, see also November 1976 Separation Examination showing blood pressure reading of 120/80). Indeed, the earliest record of elevated blood pressure after the January 1975 reading was in 1993. See January 2010 VA Medical Treatment Record. Finally, the January 1975 STR also states that the Veteran was experiencing a headache, stuffy nose, and cough for the last 3-4 days; the Board thus finds that the Veteran’s temporary elevated blood pressure may have been associated with his temporary illness. Because hypertension was not noted in service or within a year of the Veteran's active service, service connection based on chronicity or continuity of symptomatology, or on a presumptive basis for hypertension that manifests to a compensable degree within a year of service separation, is not established. See 38 C.F.R. §§ 3.303(b), 3.307. The evidence does not otherwise support a link between the Veteran’s hypertension and his active service. Accordingly, the criteria for service connection are not satisfied, and therefore service connection for hypertension is not established. Because the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Mohammad 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.