Citation Nr: 21006055 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 09-35 320 DATE: February 3, 2021 ORDER Entitlement to service connection for hypertension is denied. REMANDED Entitlement to service connection for an eye disorder is remanded. Entitlement to service connection for memory loss, to include as a qualifying condition under 38 C.F.R. § 3.317, is remanded. Entitlement to service connection for chest pain, to include as a qualifying condition under 38 C.F.R. § 3.317, is remanded. FINDING OF FACT 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. CONCLUSION OF LAW The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1989 to April 1990, from January 2004 to January 2005, and from December 2007 to February 2009. The Veteran’s service also includes service in the Southwest Asia theater of operations and, specifically, in Kuwait or Iraq. These claims come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. Entitlement to service connection for hypertension is denied. The Veteran contends hypertension was caused or aggravated by active 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). 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. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104. The Board concludes that the Veteran does not have a current qualifying diagnosis of hypertension 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 definition of “disability” includes any condition that results in “functional impairment of earning capacity.” 38 U.S.C. § 1110; Martinez-Bodon v. Wilkie, No. 18-3721, 2020 U.S. App. Vet. Claims LEXIS 1523, at *9 (Aug. 11, 2020). However, the August 2020 VA examination report found that the alleged hypertension had no functional impact on the Veteran’s ability to work. The August 2020 VA examiner evaluated the Veteran and determined that, while the Veteran had signs of high blood pressure, the Veteran did not have a qualifying diagnosis of hypertension. The August 2020 VA examination reported listed August 3 blood pressure readings of 140/88 and 146/90, August 4 readings of 144/92 and 140/88, August 6 readings of 142/90 and 140/88, and August 7 readings of 130/84, 132/80, and 134/82. While there were three readings on this list with a diastolic blood pressure at or above 90mm, these were on three separate days and a second reading did not confirm it was at or above 90mm. Further, despite treatment from March 2009 to September 2020, VA treatment records do not contain a qualifying diagnosis of hypertension. While a private practitioner stated in an April 2014 letter that the Veteran had hypertension and a December 2015 VA examination report diagnosed hypertension, there is no indication that any diagnostic tests to confirm the presence of qualifying hypertension were conducted. Instead, the statement appears to be based on the Veteran’s self-reported medical history, which is inconsistent with VA treatment records that show incidents of elevated blood pressure, but no qualifying diagnosis of hypertension. The April 2014 private practitioner noted March 2006 blood pressure readings of 147/84 and 142/90, June 2009 readings of 147/78 and 142/90, and July 2009 readings of 141/84 and 147/78. While there were two readings on this list with a diastolic blood pressure at 90mm, these were on two separate days and a second reading did not confirm it was at or above 90mm. The December 2015 VA examination report included three reading from the same day and no diastolic reading at or above 90mm, indeed the average reading was 136/80. The data that the April 2014 private diagnosis and December 2015 VA diagnosis do not support that the Veteran had a qualifying hypertension. That these diagnoses were unsupported by the underlying dates weighs against giving probative weight to this evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives more probative weight to the August 2020 VA examiner’s findings. While the Veteran believes the Veteran has a current qualifying diagnosis of hypertension, the Veteran is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. 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. Therefore, for the reasons outlined above, the Board finds that the preponderance of evidence is against the Veteran’s claim for entitlement to service connection for hypertension. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b). The claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for an eye disorder is remanded. The Board cannot make a fully informed decision on the issue of an eye disorder because no VA examiner has opined whether the Veteran has a current eye diagnosis that is related to service. As a general matter, once VA undertakes to provide an examination, it must provide an adequate one or, at a minimum, notify the claimant why one will not be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The November 2015 VA medical opinion found that the Veteran did not have a diagnosis of an eye disorder that incurred during service because the “Veteran has no current eye disorders.” However, this is inconsistent with the November 2015 VA examination report that included a diagnosed for an eye condition, other than congenital or developmental errors of refraction: “early nuclear sclerosis.” The November 2015 VA medical opinion did not resolve this inconsistency. An addendum VA medical opinion to address this diagnosis is warranted. 2. Entitlement to service connection for memory loss, to include as a qualifying condition under 38 C.F.R. § 3.317, is remanded. 3. Entitlement to service connection for chest pain, to include as a qualifying condition under 38 C.F.R. § 3.317, is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issues of memory loss and chest pain. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA examinations did not adequately address the Board’s March 2015 remand directives. The Veteran contended that his memory loss and chest pain symptoms are due to or aggravated by Gulf War environmental hazards. The evidence establishes that the Veteran is a Gulf War Veteran; thus, it necessary to consider whether service connection is warranted under the provisions of 38 C.F.R. § 3.317. The Veteran attended VA examinations for mental conditions in April 2014 and July 2020 and for heart conditions and Gulf War symptoms in December 2015. The Gulf War VA examination concluded that the Veteran has no undiagnosed cardiovascular conditions other than hypertension; however, the examination report does not reflect consideration of the Veteran’s chest pains. Review of the medical evidence of record does not establish a diagnosis for the Veteran’s chest pains. Accordingly, the Board finds that a remand for another Gulf War examination is necessary in order to fully and fairly assess the merits of the Veteran’s claim. 38 C.F.R. § 3.159 (c)(4). The matters are REMANDED for the following actions: 1. Obtain updated VA and/or private treatment records.  If any identified records are unavailable, the Veteran’s claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s early nuclear sclerosis. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (a.) Is early nuclear sclerosis at least as likely as not related to service? Provide a rationale to support the opinion. In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 3. Arrange for the Veteran to undergo a VA examination to address the claimed memory loss and chest pain. The examiner is asked to review the pertinent evidence, including the Veteran’s lay assertions regarding his symptoms, and undertake any indicated studies. Then, based on the results of the examination, the examiner is asked to address each of the following questions: (a.) Please state whether the symptoms of each claimed condition are attributable to a known clinical diagnosis. If the Veteran does not now have, but previously had any such condition, when did that condition resolve? (b.) Is the Veteran’s disability pattern consistent with: (1) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, (2) a diagnosable chronic multi-symptom illness with a partially explained cause, or (3) a disease with a clear and specific cause and diagnosis. (c.) If, after examining the Veteran and reviewing the claims file, you determine that the Veteran’s disability pattern is either (1) a diagnosable chronic multi-symptom illness with a partially explained cause, or (2) a disease with a clear and specific etiology and diagnosis, then please provide an expert opinion as to whether it is related to a presumed environmental exposures experienced by the Veteran during service in Southwest Asia. (d.) Is it at least as likely as not that any diagnosed disorder had its onset directly during the Veteran’s service or is otherwise causally related to any event or circumstance of his service, including environmental exposures during service in Southwest Asia during the Persian Gulf War? (e.) If not directly related to service based on questions (b)-(d), is any medical condition proximately due to, the result of, or caused by any service-connected disability? (f.) If not caused by another medical condition, has any disorder been aggravated (made permanently worse or increased in severity by any service-connected disability? If yes was that increase in severity due to the natural progress of the disease? If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (g.) Is memory loss at least as likely as not related to service? Provide a rationale to support the opinions. In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 4. Schedule the Veteran for a Gulf War examination by an appropriate clinician to determine the nature and cause of memory loss and chest pain symptoms. The examiner must review the claims file to include a copy of this remand. Current VA Gulf War Examination Guidelines must be followed. All indicated tests should be performed, and all findings reported in detail. The VA examiner's opinion should address the following: (a.) Whether the Veteran’s complaints related to chest pain are attributable to a known clinical diagnosis, or whether the reported problem is a manifestation of an undiagnosed illness. (b.) If the chest pain is determined to be attributable to a known clinical diagnosis, state whether it is at least as likely as not (50 percent probability or greater) that the condition had its clinical onset during active service or is related to any in-service disease, event, or injury, to include Gulf War environmental hazards. The examiner should elicit a full history from the Veteran and consider and address any lay statements of record. If there is a medical basis to support or doubt the history provided, the examiner should provide a fully reasoned explanation. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James Hekel, Associate 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.