Citation Nr: 21009906 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-33 533 DATE: February 23, 2021 ORDER Entitlement to service connection for hypertension, to include as secondary to service-connected post-traumatic stress disorder (PTSD), is denied. FINDINGS OF FACT The Veteran’s hypertension was not shown in service and did not manifest to a compensable degree within a year from service discharge. The earliest medical diagnosis of hypertension was in 2011-2012. Hypertension is not caused by or aggravated by service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for hypertension, to include as secondary to service-connected PTSD, have not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1975 until his honorable discharge in November 1977. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision by the Los Angeles, California, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied service connection for hypertension. In December 2018, the Veteran and his spouse testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record on appeal. In April 2019, the Board remanded the case to the RO for further development. . Evidentiary Standards In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. §§ 1154(a); 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128‒29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. In addition, service connection may be established on a presumptive basis for certain “chronic diseases,” including hypertension, that manifest in service or within the presumptive period following separation from service (such that their existence in service is presumed). 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The term “chronic disease” refers to those diseases in 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), as here, hypertension, with a presumptive period of one year following service discharge. “For the showing of chronic disease in service[,] there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word ‘Chronic.’ ” 38 C.F.R. § 3.303(b). Where a chronic disease is shown in service so as 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). In cases where a chronic disease is “shown as such in service,” the Veteran is “relieved of the requirement to show a causal relationship between the condition in service and the condition for which service-connected disability compensation is sought.” Walker, 708 F.3d at 1336. In other words, “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.” Id. Where the chronic condition is not “shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Id. Continuity of symptomatology is established if a claimant demonstrates that a condition was “noted” during service or during the presumptive period, there is evidence of post-service continuity of the same symptoms, and there is evidence of a nexus between the present disability and those symptoms. 38 C.F.R. § 3.303(b). A condition is “noted” where evidence is “indicative of but not dispositive of a chronic disease.” Walker, 708 F.3d at 1336. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed. Id. at 1339. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of, or aggravated by, a service-connected disability. 38 C.F.R. §§ 3.310(a), (b). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability exists, (2) the veteran has a service-connected disability; and (3) the current disability was either (a) proximately due to or the result of; or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Where aggravation is the relied upon theory, compensation may only be provided to that degree over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen, 7 Vet. App. at 448. Analysis Direct Service Connection First element: A current disability As to the first element of service connection, a current disability, the Veteran’s October 2011 private medical records indicate that he was diagnosed with hypertension at that time, and his physician noted it was “improving.” The Veteran’s VA medical records indicate he has “benign essential hypertension” as part of his current “problems list.” “Benign essential hypertension” is “a condition of mild to moderate high blood pressure that has no identifiable cause.” Benign Essential Hypertension, National Cancer Institute Thesaurus, https://ncit.nci.nih.gov/ncitbrowser/pages/home.jsf;jsessionid= BAC27400327F2628B4A4991064C7DEBB, (last accessed Jan. 23, 2021). Therefore, the first element is satisfied. Second element: An in-service event, injury, or illness, or aggravation thereof As to the second element of service connection, an in-service event, injury, or illness that occurred while on active duty, the Veteran does not assert nor does the record reasonably suggest an in-service event, injury, or illness that is reasonably related to the Veteran’s hypertension. The Veteran’s service treatment records (STRs) do not indicate in-service hypertension or associated symptoms, to include abnormal blood pressure readings. The Veteran’s November 1977 separation examination did not note any hypertension or potentially associated symptoms. Rather, his blood pressure was 112/70. Nor did his hypertension manifest within one year following separation from service. Absent an in-service event, injury, or disease, the second element is not satisfied. Third element: A causal link As there is no in-service event, injury, or illness with which to link the Veteran’s hypertension, it follows that the third element cannot be satisfied. In addition, the Veteran is not entitled to presumptive service connection under 38 C.F.R. § 3.309(a) without facts showing that his hypertension was diagnosed in service or within one year following separation from service, or that associated symptomatology was continuous since service. Accordingly, service connection for hypertension is not warranted on a direct basis. Secondary Service Connection First element: A current disability As to the first element of secondary service connection, a current disability, for the same reasons discussed within the direct-service-connection analysis, the evidence establishes that the Veteran currently has hypertension. Therefore, the first element is satisfied. Second element: A current service-connected disability As to the second element, a current service-connected disability, the Veteran is currently service-connected for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) with alcohol use disorder, cannabis use disorder, and cocaine use disorder. He has been service connected for an acquired psychiatric disorder since July 6, 2014. This is the service-connected disability that he cites as the basis for his present secondary-service-connection claim. Therefore, the second element is satisfied. The Board notes that the Veteran became service connected for sleep apnea and erectile dysfunction, each secondary to his acquired psychiatric disorder, during the pendency of his appeal. He is also service connected for tinnitus. The Veteran previously sought secondary service-connection for hypertension based on his service-connected tinnitus. The Board denied that claim in an unappealed April 4, 2019, decision. The Veteran does not argue that his service-connected sleep apnea or erectile dysfunction are related to his secondary-service-connection claim for hypertension, nor does a reasonable review of the record raise any such claims. See Robinson v. Mansfield, 21 Vet. App. 545, 552 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (Board is required to consider theories of entitlement to benefits that are either raised by the claimant or reasonably raised by the record). Third element: A causal link As to the third element, whether the Veteran’s hypertension was caused by or aggravated by his service-connected acquired psychiatric disability, the Board finds the evidence weighs against such a finding. Causation “Proximate cause” is defined as “[t]hat which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred.” Black’s Law Dictionary 1225 (6th ed. 1990); see Forshey v. West, 12 Vet. App. 71, 74 (1998), aff’d sub nom. Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002), rev’d on other grounds by, Morgan v. Principi, 327 F.3d 1357 (Fed. Cir. 2003) (adopting “proximate cause” definition); VAOPGCPREC 6-03. When there are potentially multiple causes of a harm, an action is considered to be a proximate cause of the harm if it is a substantial factor in bringing about the harm and the harm would not have occurred but for the action. VAOPGCPREC 6-03 (citing Shyface v. Secretary of Health & Human Svs., 165 F.3d 1344, 1352 (Fed. Cir. 1999)). VA General Counsel precedential opinions are binding on the Board. 38 U.S.C. § 7104(c); 38 C.F.R. § 14.507. The only relevant medical evidence of record on this issue is a November 2019 VA-contracted examiner’s opinion. The examiner opined that the Veteran’s hypertension was less likely than not proximately caused by or due to his service-connected acquired psychiatric disability. The examiner reasoned that that the Veteran had been treated for hypertension since 2012. He was diagnosed with his acquired psychiatric disability in 2015. The Board interprets the examiner’s rationale to be that since the Veteran’s hypertension was diagnosed and treated well-before his acquired psychiatric disability, it was not proximately caused by his acquired psychiatric disability. See McCray v. Wilkie, 31 Vet. App. 243, 257 (2019) (Board is capable of interpreting medical opinion evidence) (citing Harvey v. Shulkin, 30 Vet. App. 10, 20 (2018)). Furthermore, the examiner stated that “some studies” noted an “increase in incidence of [hypertension] in patients with PTSD,” but the pathophysiological correlation between PTSD and hypertension had not been documented. He further stated that cannabis, cocaine, and alcohol use disorders and depression have not been associated with the development of hypertension. The Board interprets the examiner’s rationale to mean that while medical studies have noted that hypertension may be more prevalent in patients with PTSD, no studies have documented that hypertension is caused by PTSD. Likewise, no medical data supports the theory that cannabis, cocaine, and alcohol use disorders and depression are associated with the development of hypertension. VA examiners are presumed, absent clear evidence to the contrary, “to remain up-to-date on medical knowledge and current medical studies” and failure to cite any studies is not a basis for finding the examination report inadequate. Monzingo v. Shinseki, 26 Vet. App. 97, 106‒07 (2012). Absent evidence to the contrary, the Board finds the November 2019 VA-contracted examiner was competent to exam the Veteran and opine on the etiology of his hypertension. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (the competence of VA examiners is presumed absent evidence to the contrary). The Board also finds the examiner’s opinion credible and significantly probative. The examiner’s opinion was informed by his in-person examination of the Veteran, consideration of the Veteran’s medical history and lay statements, and based on his understanding of current medical data. As there is no competent, credible, and probative evidence of record to contradict the examiner’s opinion and rationale, the Board finds the evidence weighs against finding the Veteran’s hypertension was proximately due to or caused by his acquired psychiatric disability. Aggravation “Aggravation” in the context of secondary service connection is demonstrated when there is “[a]ny increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease.” 38 C.F.R. § 3.310(b). The only relevant medical evidence of record on this issue is a November 2019 VA-contracted examiner’s opinion. The examiner opined that the Veteran’s hypertension was less likely than not aggravated by his service-connected acquired psychiatric disability. The examiner first observed that since 2012, the Veteran was prescribed 5 milligrams of Amlodipine once per day to treat his hypertension. The examiner concluded that the Veteran had been prescribed the same quantity of Amlodipine up to the date of the examination. Therefore, the Veteran did not require an increase or other alteration to his medication or treatment after his acquired psychiatric disability was diagnosed in 2015, which suggested no aggravation of his blood pressure or hypertension. Furthermore, the examiner again referenced the lack of medical data suggesting a pathophysiological correlation between the Veteran’s acquired psychiatric disability and hypertension. Thus, the examiner concluded that it was less likely than not that the Veteran’s hypertension was aggravated by his acquired psychiatric disability. Again, absent evidence to the contrary, the Board finds the November 2019 VA-contracted examiner was competent to exam the Veteran and opine on the etiology of his hypertension. Cox, 20 Vet. App. at 569. The Board also finds the examiner’s opinion credible and significantly probative. The examiner’s opinion was informed by his in-person examination of the Veteran, consideration of the Veteran’s medical history and lay statements, and based on his understanding of current medical data. As there is no competent, credible, and probative evidence of record to contradict the examiner’s opinion and rationale, the Board finds the evidence weighs against finding the Veteran’s hypertension was aggravated by his acquired psychiatric disability. The Board acknowledges the Federal Circuit has held that lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology. Davidson, 581 F.3d at 1316. The Federal Circuit has held that the Board can favor competent medical evidence over lay statements offered by the Veteran if the Board neither deems lay evidence categorically incompetent nor improperly requires a medical opinion as the sole way to prove causation. King v. Shinseki, 700 F.3d 1339, 1344 (2012). While the Board finds the Veteran competent to report his personal symptoms associated with hypertension, i.e., those that are capable of lay observation, he cannot competently opine that his hypertension was caused by or aggravated by his acquired psychiatric disability without evidence showing that he has the necessary medical training or expertise to do so. See 38 C.F.R. §§ 3.159(a)(1), (2); Jandreau, 492 F.3d at 1377. Therefore, the third element for secondary service connection has not been satisfied. Accordingly, the Veteran is not entitled to service connection for hypertension secondary to his acquired psychiatric disorder. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.