Citation Nr: 21008666 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-02 029 DATE: February 17, 2021 ORDER Entitlement to service connection for hypertension is denied. REMANDED Entitlement to service connection for heart disease is remanded. FINDING OF FACT The Veteran’s hypertension was not caused or aggravated by active duty, nor is it shown to have initially manifested within a year of discharge from active duty; hypertension became manifest between his first and second periods of active service and did not increase in severity during active duty. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 1137, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1968 to April 1970 and from October 1990 to April 1991. The matters are before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Board remanded the issues of service connection for hypertension and for a heart disorder to obtain new VA examinations and to obtain opinions regarding whether or not the Veteran’s disabilities preexisted military service and whether it was aggravated during service. The Board finds that VA properly developed the issue of service connection for hypertension, but not for a heart disorder. Thus, the issue of service connection for a heart disorder must be remanded for compliance with the March 2019 Board remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for hypertension Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 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 for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases 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, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307 (a). 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). There is no “nexus” requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. At the time of the service entrance examination, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are considered as “noted.” 38 C.F.R. § 3.304 (b). When determining whether a defect, infirmity, or disorder is “noted” at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). When the veteran is presumed sound at entrance, the burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The U.S. Court of Appeals for Veterans Claims (Court) in Horn v. Shinseki, explained that even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness. Rather, the burden is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. 25 Vet. App. 231, 235 (2012). On the other hand, where a disorder is noted on service entrance or a veteran is otherwise not presumed sound on entrance, 38 U.S.C. § 1153 applies. In such claims, the evidence of record must simply show that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). “If the presumption of aggravation under section 1153 arises, the burden then shifts to the government to show a lack of aggravation by establishing ‘that the increase in disability is due to the natural progress of the disease.’“ Wagner, 370 F.3d at 1096 (citing 38 U.S.C. § 1153 ). This requires the government show by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition. Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003); Horn v. Shinseki, 25 Vet. App. at 235 (2012) (“Once the Veteran establishes worsening, the burden shifts to the Secretary to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease.”); see also 38 C.F.R. § 3.306 (b). Clear and unmistakable evidence means that the evidence “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (quoting Yanerson v. West, 12 Vet. App. 254, 258-59 (1999)). The clear-and-unmistakable-evidence standard is an “onerous” one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)); see also Yanerson, 12 Vet. App. at 263 (Nebeker, C.J., concurring in part and dissenting in part) (“[O]nly an inference that is iron clad and copper riveted can be ‘unmistakable.”). Service connection may also be granted on a secondary basis for a condition that is not directly caused by the veteran’s service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he is entitled to service connection for hypertension. The term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater. The term isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. As an initial matter, the Board finds that the competent evidence of record confirms that the Veteran currently has hypertension. The service treatment records (STRs) for the Veteran’s first period of service noted blood pressure readings throughout service. His October 1967 entrance examination reported a blood pressure reading of 132/84 with an evaluation that the Veteran’s lungs, chest, heart, and vascular system were all normal. The April 1970 separation examination reported a blood pressure reading of 138/76. During this examination the examiner noted that the veteran’s lungs, chest, heart, and vascular system were all normal. When asking whether the Veteran experienced high or low blood pressure, chest pain or pressure, heart trouble, shortness of breath, or palpitation or pounding heart, the Veteran responded by saying no. In the March 1982 examination, the Veteran reported that he did not have high or low blood pressure, chest pain or pressure, heart trouble, shortness of breath, or palpitation or pounding heart. The March 1986 examination reported a blood pressure reading of 140/100 with it reducing to 140/90. Upon examination the examiner noted that the Veteran’s lungs, chest, heart, and vascular system were normal, but that he had mild hypertension. The Veteran reported that he did not have high or low blood pressure, chest pain or pressure, heart trouble, shortness of breath, or palpitation or pounding heart. An examination in March 1986 showed an abnormal EKG which showed left ventricular hypertrophy and a blood pressure reading of 120/90 and of 140/100. Mild hypertension was noted. In a cardiovascular screening in January 1989, the medical records showed that the Veteran was not cleared for participation in the over 40 Physical Fitness Training Program. In March 1991, the Veteran reported of chest pain with shortness of breath with blood pressure readings of 136/88 and 132/82. The next day he had a blood pressure reading of 166/89 with atypical chest pain. A couple of days later he had a blood pressure of over 160, but it was noted that the Veteran was normotensive. In the April 1991 examination, the examiner noted that the Veteran had normal lungs, chest, heart, and vascular system, but that he was hospitalized and is now back at baseline. In another STR, the examiner noted that the Veteran has a history of high blood pressure and was hospitalized three times in March 1991 for the same problems of chest pain and high blood pressure. The examiner noted that the problems began prior to being deployed to Saudi Arabia and that the assessment is that he has high blood pressure and atypical chest pain. In September 1991, a memorandum was issued reported that the Veteran has a history of mild hypertension and that he had developed chest pain while deployed in Saudi Arabia in March 1991. The examiner furthered that because of the uncertainty of the pain, he was Air Evac to Walter Reed where a cardiovascular evaluation was done in April 1991. He was discharged with a diagnosis of atypical chest pain and borderline hypertension In an October 1991 record, the examiner noted that the Veteran had a history of hypertension and chest pain for the last year and that he has hypercholesterolemia with chest pain that is not related to exercise. The blood pressure reading of the right was 160/100 and the left with 180/110. The Veteran was diagnosed with hypertension and it was assessed that the Veteran had uncontrolled high blood pressure, dyslipidemia, and chest pain. The blood pressure readings from April 1968 to April 1970, reflected diastolic blood pressure readings were predominantly of less than 90 mm and systolic blood pressure readings of less than 160 mm. These records did not show findings consistent with a diagnosis of hypertension for VA purposes or that the Veteran received any treatment, complained of, or was prescribed any medications for hypertension. After separating from service in April 1970, treatment records noted elevated blood pressure readings, with a subsequent diagnosis of hypertension prior to the second period of active duty in October 1990 to April 1991. Thus, the evidence of record fails to support a finding of hypertension during the first period of active duty service or for more than a year thereafter, and service connection on a presumptive basis as a chronic condition is not warranted. 38 C.F.R. §§ 3.307, 3.309. Accordingly, the question in this case becomes whether the current hypertension is etiologically related to service, specifically to the second period of active duty service between October 1990 to April 1991. On this question, the preponderance of the evidence is against the claim. An August 1999 VA examination reported that the Veteran has a history of arterial hypertension since 1991 and was diagnosed while in active military service when blood pressure was found in 240/120. The examiner furthered that the Veteran was evaluated in August 1992 where a thallium test was performed and reported as normal. The Veteran complained of dyspnea on exertion and chest pain upon moderate efforts, like climbing one flight of stairs. The blood pressure readings were 180/100, 175/100, and 180/100. The Veteran was diagnosed with hypertensive heart disease and ischemic heart disease. The December 2006 VA examination reported that the onset of the Veteran’s hypertension was in 1980. The examiner reported that the Veteran was diagnosed with hypertension during active military service at the reserve for which he started medications. The examiner also reported that the Veteran presented with acute coronary syndromes several times in the past five years but that he is currently stable. In a July 2010 VA treatment record, the Veteran requested that the examiner opine on whether his disabilities should be service-connected or not. The Veteran brought his military medical records to show the examiner. The examiner reported that after careful review of the Veteran’s military medical records, it is his opinion that the Veteran’s heart disorder and his arterial hypertension were aggravated during his military service in Saudi Arabia and that they should be considered as likely as not related to his military service. In the November 2010 VA examination, the examiner reported that the Veteran had his hypertension onset in 1991. The blood pressure reading was 140/90. The examiner opined that the Veteran’s hypertension is most likely related to his time in military service since he was seen for it and was treated during military service. In the April 2011 VA addendum the examiner noted that the Veteran’s pre-service disorders were not aggravated by his second tour of duty since these conditions would have progressed regardless of military service. The Veteran submitted a private medical opinion in March 2015 where the examiner reported that he reviewed the Veteran STRs and that it is in his professional cardiac opinion that the Veteran’s pre-existing hypertension may have been worsened or aggravated by his active duty during Desert Storm. The examiner furthered that hypertension and coronary artery disease are the two primary etiologies for his cardiac diagnoses. The Veteran was afforded a VA examination in February 2020 where the examiner noted that the Veteran’s hypertension started around 1989, but that he started to have high blood pressure while in Saudi Arabia in 1991. The examiner incorrectly opined regarding the Veteran’s hypertension and heart disorder since the examiner claimed that the Veteran’s hypertension and heart disorder manifested during military service, but did not address that the Veteran’s hypertension and heart disorder had already been diagnosed before his second period of military service from October 1990 to April 1991. As such, the Board finds these opinions to be inadequate since the Veteran’s hypertension and heart disorder clearly and unmistakably pre-existed his second period of military service. In an August 2020 VA addendum opinion after thoroughly reviewing the Veteran’s medical treatment records, the examiner opined that the Veteran’s hypertension is less likely than not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. He explained that chemical exposures, burn pits, burning fuel, and air pollutants are not known to cause hypertension. He furthered that the Veteran has essential hypertensive heart disease which is a diagnosable condition with partially explainable etiology due to aging and genetic predisposition. The examiner further opined that the medical reports show that the Veteran’s hypertension clearly and unmistakably existed prior to the Veteran’s active duty period between October 1990 to April 1991. He explained that medical records showed that the Veteran was not cleared for participation in the over 40 Physical Fitness Training Program after a cardiovascular screening in January 1989. Other records showed an abnormal EKG which showed left ventricular hypertrophy and blood pressure was 120/90. A medical examination from March 1986 showed a blood pressure reading of 140/100 with a diagnosis of hypertension. The examiner opined that due to these medical records it is evident that the Veteran’s hypertension pre-existed the Veteran’s second period of military service. The examiner furthered that the Veteran’s hypertension which clearly existed prior to active duty between October 1990 to April 1991 is less likely than not aggravated beyond its natural progression during military service since there is insufficient medical evidence to demonstrate that hypertension was aggravated during his service. The August 1999, November 2010, and February 2020 VA medical opinions all claimed that the Veteran’s hypertension had its onset during the Veteran’s second military service period from October 1990 to April 1991. However, because there is evidence reporting that the Veteran experienced hypertension prior to the Veteran’s start of military service in October 1990, the Board finds that these opinions are inadequate and have no probative weight. The December 2006 VA examiner reported that the Veteran’s hypertension had its onset in 1980, but that the Veteran was diagnosed with hypertension while in active military service. This opinion is contradictory since the Veteran did not have active military service in 1980. As such, the Board finds that this opinion has very little probative weight since it contradicts with the Veteran’s actual military service periods. The July 2010 VA opinion and March 2015 private opinion both reported that the Veteran’s hypertension pre-existed the Veteran’s military service period of October 1990 to April 1991 and that the second period of military service aggravated the Veteran’s hypertension. However, in both these opinions there is no rationale explaining why the Veteran’s hypertension was aggravated by military service, nor did either of examiners utilize any medical evidence to show that the Veteran’s hypertension had been aggravated beyond its natural progression. As such, the Board finds both these opinions to have very little probative weight. The April 2011 and August 2020 VA opinions report that the Veteran’s hypertension clearly and unmistakably pre-existed the second period of the Veteran’s military service and that the Veteran’s hypertension was not aggravated during that period of military service. The examiners explain that the Veteran’s hypertension progressed in its natural way and that there was no evidence showing that the Veteran’s hypertension was aggravated during that period of service. The Board finds these opinions to be highly persuasive and probative in finding that the evidence does not support a conclusion that the Veteran’s hypertension pre-existed the second period of military service and that it was not aggravated beyond its natural progression. The examiner’s findings were based on a review of the evidence, including the STRs and post-service treatment records. The examiners considered the complete record and the Veteran’s contentions, and provided an explanation as to why the evidence does not support his contentions. Additionally, the VA examiners provided reasoning that is supported by the record. Finally, the opinions are consistent with other evidence of record and is of significant probative value. Nieves-Rodriguez, 22 Vet. App. at 304. Thus, the Board finds that the Veteran’s hypertension clearly and unmistakably preexisted his second period of active duty service. Regarding aggravation, the treatment records failed to document permanent aggravation beyond the natural progression of the disease during any period of active duty. In this regard, the condition has remained under treatment with medication. In light of the foregoing, for all the reasons noted above, the evidence of record fails to show that his preexisting hypertension was aggravated during service beyond the natural progression. Significantly, a permanent increase in severity is not shown, as there is no evidence of record dated during the period covered by this claim that shows a hypertension disability picture that is any worse than what is shown at the time of entry into active duty service in October 1990 or at any time thereafter. As for causation, the Board notes that the evidence shows hypertension to preexist his second period of active duty service, but it is not shown to have been present either during his first period of active duty or manifested within one year of discharge thereof. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, hypertension falls outside the realm of common knowledge of a lay person. In this regard, any actual diagnosis of hypertension requires objective testing to diagnose and can have many causes. See Jandreau, 492 F.3d at 1377, n. 4. To the extent that the Veteran believes that he has hypertension that is due to service, as a lay person, he is not shown to possess any specialized training in the medical field. The Veteran’s opinion as to the etiology of his current hypertension is not competent evidence, as the nexus question involved in this case requires medical expertise to determine. Id. As the preponderance of the evidence is against the claim, the claim for service connection for hypertension is denied. See 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 55-56. REASONS FOR REMAND Entitlement to service connection for heart disease is remanded. The Board finds that the March 2019 Board remand instructions have not been properly followed regarding the issue of service connection for heart disease. The decision requested VA to obtain a VA examination and medical opinions regarding whether the Veteran’s heart disorder preexisted the Veteran’s second period of military service and if VA found that the Veteran’s heart disorder did preexist that period of active military service whether the military service had aggravated it beyond its natural progression. Because the August 2020 VA examiner found that the Veteran’s heart disorder preexisted the second period of military service, the examiner should have opined on whether the Veteran’s heart disorder was aggravated beyond its natural progression during that period of military service. However, there is no such opinion regarding whether or not the Veteran’s heart disorder was aggravated during military service. Therefore, a remand is necessary to obtain an addendum opinion regarding aggravation of the Veteran’s heart disorder during the second period of his military service. The Board is not finding any evidence to be credible or not credible at this moment. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s heart disorder (that clearly and unmistakably preexisted his service that began in October 1990) clearly and unmistakably was not aggravated by service from October 1990 to April 1991. A complete rationale must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. Kelli A. Kordich Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam, 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.