Citation Nr: 21010904 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 14-24 341 DATE: February 26, 2021 ORDER Service connection for hypertension is granted. FINDINGS OF FACT 1. Hypertension was not manifest during active service from May 1976 to September 1976 or to a compensable degree within one year. Hypertension is not attributable to such period of service. 2. Hypertension was not manifest during active service from November 1980 to April 1992 or to a compensable degree within one year. Hypertension is not attributable to such period of service, to include service in Southwest Asia. 3. Hypertension clearly and unmistakably preexisted the Veteran’s active service from October 2001 to May 2002. The evidence clearly and unmistakably shows that hypertension was not aggravated by this period of service. 4. Hypertension clearly and unmistakably preexisted the Veteran’s active service May 2009 to December 2009 and from December 2009 to August 2010. The evidence clearly and unmistakably shows that hypertension was not aggravated by these periods of service. 5. Hypertension clearly and unmistakably preexisted the Veteran’s active service from November 2010 to October 2011. The evidence does not show that hypertension was not clearly and unmistakably aggravated by active service from November 2010 to October 2011. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by active service from May 1976 to September 1976, nor may it be presumed to have been incurred or aggravated therein. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1137, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (a). 2. Hypertension was not incurred in or aggravated by active service from November 1980 to April 1992, nor may it be presumed to have been incurred or aggravated therein. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1137, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (a). 3. Hypertension clearly and unmistakably preexisted the Veteran’s period of active service from October 2001 to May 2002 and clearly and unmistakably was not aggravated therein. 38 U.S.C. §§ 1110, 1111; 38 C.F.R. §§ 3.303, 3.304, 3.306. 4. Hypertension clearly and unmistakably preexisted the Veteran’s periods of active service from May 2009 to December 2009 and from December 2009 to August 2010, and clearly and unmistakably was not aggravated therein. 38 U.S.C. §§ 1110, 1111; 38 C.F.R. §§ 3.303, 3.304, 3.306 5. Hypertension was incurred during active service from November 2010 to October 2011. 38 U.S.C. §§ 1110, 1111, 1153; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had a period of Active Duty for Training from May 1976 to September 1976. He then had periods of active service from November 1980 to April 1992, October 2001 to May 2002, May 2009 to December 2009, December 2009 to August 2010, and November 2010 to October 2011. He had service in Southwest Asia. The claim service connection for hypertension has been remanded multiple times by the Board of Veterans’ Appeals (Board). Most recently, in October 2020, the Board remanded to obtain a new medical opinion as to whether the Veteran’s hypertension was at least as likely as not caused or aggravated beyond the natural progression by the Veteran’s service or by a service-connected disease or injury, to include posttraumatic stress disorder (PTSD), sleep apnea, or diabetes. The opinion was obtained in November 2020. The directives were substantially complied with, and the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection The Veteran seeks service connection for hypertension under a variety of theories. He contends that hypertension either began in or was aggravated by active service, is secondary to his service-connected diseases, or that hypertension is due to exposures he experienced during his service in Southwest Asia. To establish service connection a Veteran must generally show: “(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 also 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). Service connection may also be established for hypertension if manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (a). 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). When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. 1. Service connection for hypertension for active service period from May 1976 to September 1976. 2. Service connection for hypertension for active service period from November 1980 to April 1992. The Board finds that the evidence weighs against a finding that the hypertension is related to his active service periods from May 1976 to September 1976 and from November 1980 to April 1992. There is no evidence of hypertension during these periods of service. There are no treatment records from the ACDUTRA from May 1976 to September 1976. The September 1980 entrance examination shows a clinically normal evaluation of the heart and vascular system, that sitting blood pressure was 100/70, and that diastolic blood pressure was 66 while sitting. He denied any history of high or low blood pressure in the September 1980 report of medical history. Blood pressure was recorded as 110/80 in August 1983, 130/90 in January 1984, 120/78 in April 1986, 130/76 in December 1987, 118/80 in February 1989, and 120/80 in January 1992. Although diastolic blood pressure was 90 once during this period of service, the pressure dropped below 90 in each subsequent blood pressure measurement. Hypertension was not confirmed by these subsequent readings, nor was there any notation that the Veteran’s blood pressure was otherwise considered high during this period of service. He denied a history of high blood pressure in a January 1992 report of medical history. The January 1992 medical examination shows a normal clinical evaluation of the heart and vascular system. Following the Veteran’s separation from service in April 1992, there are treatment records dating from the Veteran’s National Guard service that show elevated blood pressure. Blood pressure was 140/80 in a June 1993 medical examination, although clinical evaluation of the heart and vascular system. An October 1996 examination report shows the Veteran’s blood pressure was 130/98 while sitting and 126/98 while sitting. The examiner noted an elevated blood pressure reading and recommended the Veteran report his blood pressure periodically. Clinical evaluation of the vascular system was normal. The heart and vascular system were clinically normal on a May 1998 report of medical examination and blood pressure was 130/80. These blood pressure ratings were not recorded during a qualifying period of active service. The Board has considered the case under the laws governing Gulf War Veteran’s. The Veteran had service in Southwest Asia during his period of service from November 1980 to April 1992 and has asserted his hypertension was caused by service in the Gulf War. However, hypertension is a known disease and the provisions under 38 C.F.R. § 3.317 will not be applied here. Furthermore, the April 2014 VA examiner determined that it was less likely than not that hypertension was due to any environmental exposure while in Southwest Asia, explaining that medical literature does not provide any evidence that sustained, elevated arterial pressures controlled by blood pressure medications would be due to any specific environmental exposure event from Southwest Asia. There is no contrary opinion of record. The Veteran has also provided little to no evidence beyond his bare assertion suggesting his hypertension is related to environmental exposures during his service in Southwest Asia. Making such a connection would require specialized education, training, or experience that the Veteran does not possess. See 38 C.F.R. § 3.159 (a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Beyond the Veteran’s own speculation regarding etiology, there is no evidence that hypertension existed during these periods of service or of any relationship between hypertension and these periods of service. Finally, hypertension is a chronic disease. However, the evidence does not show that hypertension was manifest during service or to a compensable degree within one year of separation from these periods of active service. The first notation of high blood pressure is from an October 1996 which showed the Veteran’s blood pressure was 130/98 while sitting and 126/98 while sitting. However, this was more than four years after separation in April 1992. There is otherwise no evidence that hypertension either manifested within one year of separation from his initial period of duty that ended in September 1976. Therefore, hypertension my not be presumed to have been incurred during these periods of active service. 3. Period of service from October 2001 to May 2002. Initially, we note that there are no treatment records in the claims file from this period of service. A June 2016 VA memorandum shows that no further service treatment records are available, and to date no other service treatment records have been associated with the file. However, following a review of the available records the Board finds that the evidence weighs against a finding that the Veteran’s hypertension is related to his active service period from October 2001 to May 2002. Although there is no entrance examination of record for this period of service, there is also little evidence that hypertension actually existed prior to October 2001. Blood pressure was 140/80 in a June 1993 medical examination, and clinical evaluation of the heart and vascular system. Although an October 1996 examination report shows an elevated blood pressure reading, the heart and vascular system were clinically normal on a May 1998 report of medical examination and blood pressure was 130/80, suggesting the elevated blood pressure readings in October 1996 were temporary. There is essentially no evidence that the Veteran was seen for high blood pressure during this period of service or that high blood pressure or hypertension were manifest during this period, nor does the Veteran contend otherwise. Following this period of service, a June 2003 medical examination shows a clinically normal evaluation of the heart and vascular system blood pressure was 124/80. The Veteran denied a history of high blood pressure in a June 2003 report of medical assessment. Although hypertension is a chronic disease, there is no indication that hypertension manifest to a compensable degree within one year of separation from this period of service, and hypertension may not be presumed to have been incurred during this period. Since hypertension is a known disease, the Gulf War provisions under 38 C.F.R. § 3.317 will not be applied, and there is no competent medical evidence suggesting a nexus between hypertension and service in Southwest Asia. The April 2014 VA opinion is negative and uncontradicted. Considering the above, we conclude that the Veteran’s hypertension did not preexist his active service from October 2001 to May 2002, was not manifest during this period of service, and did not manifest to a compensable degree within one year of his separation. Hypertension is unrelated to Gulf War exposures. Service connection for hypertension based on this period of service is denied. 4. Periods of service from May 2009 to December 2009, and December 2009 to August 2010. The Veteran had periods of active service from May 19, 2009 to December 1, 2009, and from December 5, 2009 to August 4, 2010. As the first and second periods of service are separated by only four days, and there are no medical records dating from those four days, the Board will consider these periods together. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether the disease or injury preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). Here, there is an issue as to whether the Veteran’s hypertension preexisted these periods of service. On an April 2008 health assessment, the Veteran’s blood pressure was recorded as 144/92 and he was diagnosed with hypertension. However, there is no entrance examination of record relating specifically to these periods of service, nor is there any indication that the Veteran was examined prior to beginning active service in either May 2009 or December 2009. The presumption of soundness under 38 U.S.C. § 1111 does not apply when a veteran has not been examined contemporaneous to entering a period of active service. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that the presumption of sound condition “attaches only where there has been an induction examination in which the later-complained-of disability was not detected” (citing Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991)). In the absence of such an examination, there is no basis from which to determine whether the claimant was in sound condition upon entry into that period of service on which the claim is based. Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). Thus, the Veteran is not presumed sound upon entry to this period of active service. As explained above, the available medical records show that the Veteran had been formally diagnosed with hypertension in April 2008, prior to these periods of service. As the presumption of soundness does not apply as to the Veteran’s hypertension, to grant service connection the evidence must establish that hypertension was aggravated during service. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153. A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306 (a). Here, the available evidence shows the Veteran’s hypertension was not aggravated by these periods of service. We again note that there are very few treatment records available from during the Veteran’s deployments. However, a December 2009 health assessment shows the Veteran reported his health was very good and that he denied medical problems or prescription medications. A December 2009 blood pressure reading shows pressure was 148/88 and he was cleared for deployment. Additionally, a July 2010 report of medical assessment shows the Veteran did not report any blood pressure problems following his deployment during his December 2009 to August 2010 period of service. These records suggest the Veteran had no problems related to hypertension during these periods of service and that his blood pressure remained stable throughout, suggesting hypertension did not increase in severity during service from May 2009 to December 2009 and December 2009 to August 2010. The Board has considered the Veteran’s statements, particularly his belief that his deployments to Southwest Asia aggravated his hypertension. However, as explained above, while laypersons are competent to report a contemporaneous medical diagnosis and, in certain instances opine as to etiology, the Veteran’s contentions that his preexisting hypertension increased in severity as a result of his service are outweighed by the above evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In sum, the presumption of soundness is not applicable to these periods of service. The evidence reflects that the Veteran’s hypertension preexisted his active service from May 2009 to December 2009 and December 2009 to August 2010 and was not aggravated by these periods of service. The evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim for entitlement to service connection for hypertension based on these periods of service must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 5. Period of service from November 2010 to October 2011. As noted above, the presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether the disease or injury preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). Here, there is no entrance examination of record relating specifically to the period of active service from November 2010 to October 2011. We note that the Veteran’s service treatment records appear incomplete and contain no records from the Veteran’s actual deployment during this period of service, and that a June 2016 memorandum shows that no further service treatment records are available. However, what evidence we do have suggests the Veteran was examined prior to this period of service. He has told multiple VA examiners that he was examined prior to his deployment and prescribed blood pressure medications due to elevated blood pressure readings noted on that examination. Furthermore, the April 2012 VA examiner reported the elevated blood pressure reading from the Veteran’s November 2010 examination. That blood pressure reading is not otherwise reported in the available service treatment records. This indicates that the Veteran was examined prior to this period of service, and that the examination report is lost or otherwise unavailable. Therefore, we find that the presumption of soundness attaches. See 38 C.F.R. § 3.304 (b); Quirin v. Shinseki, 22 Vet. App. 390, n.5 (2009); Lee v. Brown, 10 Vet. App. 336, 339 (1997) (holding that the presumption of soundness applies even when the record of a veteran's entrance examination has been lost or destroyed while in VA custody). Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In order to rebut the presumption of sound condition, VA must show by clear and unmistakable (obvious or manifest) evidence both (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. See 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). Thus, when the presumption of sound condition applies, the claimant is not required to establish aggravation by showing that the pre-existing disease or injury increased in severity during service. See VAOPGCPREC 3-2003. Rather, the burden remains with VA to show by clear and unmistakable evidence that the pre-existing disease or injury was not aggravated by service. Id.; Wagner, 370 F.3d at 1096; Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (observing 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”). VA may find a lack of aggravation under § 1111 if the clear and unmistakable evidence shows that there was no increase in disability during service, or that any increase in disability was due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096; 38 U.S.C. § 1153; 38 C.F.R. § 3.306. If this burden is met, then the veteran is not entitled to service-connection benefits. Wagner, 370 F.3d at 1096. The burden of proof is on VA. On the other hand, if the presumption of soundness applies and VA fails to show by clear and unmistakable evidence that the pre-existing condition was not aggravated by active service, then the presumption has not been rebutted. Id. at 1094. In that case, the claim will be considered as a normal claim for service connection and, if granted, no deduction for the degree of disability existing at the time of entrance will be made. Id. at 1094, 1096 (holding that Congress intended to “convert aggravation claims to ones for service connection when the government fails to overcome the presumption of soundness under section 1111”); 38 C.F.R. § 3.322. First, the Board finds hypertension clearly and unmistakably preexisted the Veteran’s period of active service from November 2010 to October 2011. He was formally diagnosed with hypertension in April 2008. There is no indication the diagnosis changed prior to the Veteran entering active service in November 2010. Furthermore, the Veteran has reported that he was prescribed medication for hypertension following the entrance examination for this period of service, indicating that hypertension was identified at entry and treated thereafter. The question now becomes whether there is clear and unmistakable evidence that the Veteran’s hypertension was not aggravated by service. If the government fails to rebut the presumption, the claim is one for service connection, not aggravation. The Board cannot rebut the second prong of the presumption of soundness. The Board reiterates that, to rebut the second prong of the presumption of soundness, VA must establish by clear and unmistakable evidence that the Veteran’s hypertension was not aggravated by service. 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). Clear and unmistakable evidence is an onerous standard. Laposky v. Brown, 4 Vet. App. 331, 334 (1993). Here there is little evidence establishing that the Veteran’s hypertension did not increase during service or that any increase was due to the natural progress of the preexisting disability. Rather, there is some evidence that the Veteran’s hypertension increased during this period of service. Prior to November 2010, treatment records and periodic examinations show the Veteran denied taking any prescription medications for his hypertension. In an October 2011 report of medical assessment, the Veteran reported high blood pressure during deployment and a prescription for Diovan, a blood pressure medication, was also noted. The blood pressure reading on the October 2011 medical demobilization check sheet was 134/80. In an October 2011 report of medical assessment, the Veteran reported high blood pressure during deployment. A prescription for Diovan, a blood pressure medication, was also noted. The blood pressure reading on the October 2011 medical demobilization check sheet was 134/80. The Veteran was afforded a VA examination in April 2012. The Veteran reported that he had elevated blood pressure on a routine examination and that he was given a low dose of lisinopril that was changed to Diovan because of side effects. The examiner noted that blood pressure was 144/78 in November 2011, 142/88 in January 2011, and 142/82 in October 2011, with the last two measurements while the Veteran was on medication. On the date of examination, the Veteran’s blood pressure readings were 124/84, 133/82, and 124/78. The examiner diagnosed hypertension with a date of diagnosis of November 2010. A June 2012 VA primary care note shows a diagnosis of hypertension and that the Veteran was prescribed amlodipine. We acknowledge that VA examiners in April 2016 and December 2018 concluded that hypertension was not aggravated beyond natural progression by any of the Veteran’s periods of service. However, these opinions are of lessened probative weight. Neither the April 2016 examiner nor the December 2018 examiner offered rationale for their conclusion that the Veteran’s hypertension was not aggravated beyond natural progression by service. See Nieves-Rodriguez v. Peake, 22 Vet. App. at 304 (“It is the factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion.”). In addition, the April 2016 opinion appears to rely on factual inaccuracies. The Veteran did not admit that he had hypertension since the late 1990’s and the first recorded diagnosis was in 2008. In addition, there is no indication that the Veteran was ever prescribed blood pressure medications prior to his service from November 2010 to October 2011. See Reonal v. Brown, 5 Vet. App. 458 (1993) (stating that “[a]n opinion based upon an inaccurate factual premise has no probative value”). Given this evidence of continued hypertension, the fact that the Veteran’s hypertension first required prescription medication during his period of service from November 2010 to October 2011, and the changing hypertension medications during service, the Board cannot find that the Veteran’s hypertension clearly and unmistakably was not aggravated by this service. The second prong of the presumption of soundness has not been rebutted. Since the presumption of soundness has not been rebutted, the Veteran is presumed sound at entry. Although the complete service treatment records from this period of service are not available, he reported prescriptions for blood pressure medications in relevant post-deployment assessments and the April 2012 VA examination shows the Veteran had hypertension during service. More recent VA treatment records continue to show a hypertension diagnosis and that he is prescribed medication for blood pressure. The Board finds that all the necessary elements to establish service connection have been established. See 38 U.S.C. § 1110; Shedden, 381 F.3d at 1167. Accordingly, the Board finds that service connection is warranted for the Veteran’s hypertension based upon incurrence during the final period of service. As noted by the Court, if VA cannot rebut the two-prong presumption of soundness, the grant is incurrence, not aggravation. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morse 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.