Citation Nr: 21012133 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 11-11 537 DATE: March 3, 2021 ORDER Service connection for hypertension is granted. FINDINGS OF FACT 1. Hypertension clearly and unmistakably existed prior to the Veteran’s entry to his second period of active service. 2. The evidence does not clearly and unmistakably show that the Veteran’s pre-existing hypertension was not aggravated during his second period of active service. 3. Resolving all doubt in the Veteran’s favor, the Veteran’s hypertension was incurred in service. CONCLUSION OF LAW The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1986 to September 1986, and December 2007 to December 2008. The Veteran has been a member of the Army National Guard with unknown service dates, including potential other periods of active duty. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, the Board remanded the current claim, as well as a claim for service connection for a bilateral foot disorder, for additional development. While on remand, a July 2020 rating decision awarded service connection for bilateral pes planus and plantar fasciitis. As such claim has been granted in full, it is no longer before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The remaining claim now returns for further appellate review. Entitlement to service connection for hypertension. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). 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 the 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; 38 C.F.R. § 3.304(b). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the veteran’s entrance examination report, this presumption of soundness operates to shield the veteran from any finding that the unnoted disease or injury preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991); 38 C.F.R. § 3.304(b). Such presumption is only rebutted where the evidence clearly and unmistakably shows that the veteran’s disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby, 1 Vet. App. at 227; VAOPGCPREC 3-2003 (July 16, 2003). The two parts of this rebuttal standard are referred to as the “preexistence prong” and the “aggravation prong.” Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was “due to the natural progression” of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as cardiovascular-renal disease (to include hypertension), are presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). At the outset, the Board notes that the Veteran has a current diagnosis of hypertension as demonstrated by a May 2019 VA examination. The Veteran’s service treatment records (STRs) reflect that his May 1986 enlistment examination, prior to his first period of active duty, does not show hypertension. Blood pressure was recorded at that time as 126/74. A corresponding Report of Medical History indicates that the Veteran denied high or low blood pressure. Further, the Veteran conceded that his hypertension was diagnosed following his first period of active duty. Thus, the evidence does not show, and the Veteran does not claim, an incurrence of hypertension during his first period of active service. Clinical evidence dated prior to the Veteran’s second period of active duty indicates evidence of elevated blood pressure, with blood pressure readings of 134/86 in September 1992; 149/95, 127/79, and 132/70 in March 1995; 124/98 in January 1998; 120/90 in February 2004; 148/94, 168/92, and 146/88 in July 2005; 130/92 in April 2006; 140/110 in July 2006; and 140/100, 132/100, 138/98 (in the left arm) and 140/110, 136/110, 130/90 (in the right arm) in August 2007. Additionally, a March 2006 STR reveals that the Veteran had a recent diagnosis of hypertension five months prior. Here, the Veteran was in training (Army Guard Reserve), developed chest pain, and underwent a stress test; and his recollection was that he was told that there was nothing wrong with his coronaries, but he had high blood pressure. Such record further reveals that the Veteran’s hypertension was not being treated; however, the physician noted an impression of hypertension, out of control, and started him on medication once a day. Further, a June 2006 STR reveals the Veteran’s report that he was taking medication for high blood pressure; and a July 2005 STR notes an assessment of elevated blood pressure (161/106) with a complaint of chest tightness. A July 2006 STR reflects that the Veteran presented with hypertension out of control; and that he was advised not to undergo any intense effort, due to the possibility of further raising his blood pressure. An August 2006 STR notes that the Veteran had hypertension out of control and was being seen for an evaluation of his blood pressure response to exercise (such was noted as adequate). During the Veteran’s second period of active duty, blood pressure was recorded at 161/90 in January 2008; 149/93 in August 2008; 110/98 in November 2008; and 158/100 and 142/100 in December 2008. Additionally, a January 2008 STR includes an assessment of systemic hypertension that was apparently uncontrolled on Diovan. A December 2008 Post-Deployment Health Assessment reveals that the Veteran reported hypertension as a concern; and an additional December 2008 STR reflects that the Veteran had uncontrolled hypertension for four years. Following separation from the Veteran’s second period of active duty, he underwent a VA general medical examination in March 2009. At such time, the examiner indicated that the Veteran had hypertension for four years; and that he was diagnosed when he went for a check-up and found that his blood pressure was elevated. The examiner further indicated that the Veteran was taking medication for his blood pressure three times a day; that there was no evidence of hypertensive heart disease or arteriosclerotic complication of hypertension; and that the Veteran did not experience tightness in his chest, but had shortness of breath mainly due to his asthma rather than his high blood pressure. His blood pressure was recorded as 130/90. Additionally, a November 2009 Periodic Health Assessment demonstrates that the Veteran had a history of high blood pressure and was on medication. In May 2019, the Veteran was afforded a VA hypertension examination. At such time, the examiner noted a 1995 diagnosis of hypertension. The Veteran’s blood pressure average, based on three readings, was 136/100; and the examiner reported that elevated blood pressure was noted prior to his military service. Ultimately, the examiner determined that the Veteran’s military service did not cause or aggravate his hypertension. However, as the examiner did not provide any rationale for such opinion, it is afforded no probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). A May 2020 addendum opinion included the conclusion that the Veteran’s hypertension clearly and unmistakably existed prior to service, and was less likely than not worsened beyond its natural progression as a result of military service. In support thereof, the examiner reported that there was no evidence to support that the Veteran’s hypertension (which was a progressive disorder) was aggravated beyond its natural progression as a result of military service. The examiner further reported that there was evidence post-service of medication changes in regard to the Veteran’s hypertension and the Veteran was not always compliant with taking his medication. In this regard, the Board notes that the May 2020 VA medical opinion does not include the correct legal standard in cases such as this. Here, once clear and unmistakable evidence established that the Veteran’s hypertension preexisted his second period of service, the question became whether there is clear and unmistakable evidence that his hypertension was not aggravated during this period of service. Such question was not answered in such opinion as the examiner did not provide an explanation to meet the “onerous” and “very demanding” evidentiary standard, requiring that the evidence be “undebatable.” Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)). Specifically, the Board finds there is clear and unmistakable evidence that the Veteran’s hypertension existed prior to his second period of active duty; however, the Board finds VA has not established, with clear and unmistakable evidence, that the Veteran’s hypertension did not increase in severity beyond the natural progression of the disease during this period of service. The May 2020 VA medical opinion does not include an analysis of this question. Here, such opinion with respect to aggravation was predicated upon an as-likely-as-not standard, rather than a clear-and-unmistakable-evidence standard, and it is therefore not adequate for use in this analysis. VA has not met the evidentiary standard to prove that the Veteran’s hypertension, which clearly and unmistakably preexisted the second period of service, was clearly and unmistakably not aggravated during this second period of service. As such, VA has not met the standard to rebut the presumption of soundness in this case. This leaves the matter to be analysis under the basic law related to establishing service connection without consideration of a preexisting disability. See Wager, supra. Further, as discussed at length above, the Veteran’s records from his second period of active service clearly show various notations of elevated blood pressure readings. Indeed, STRs dated in December 2008 include a notation of an elevated blood pressure reading of 142/100; and that the Veteran had uncontrolled hypertension. Such elevated blood pressure is clearly described as hypertension by the VA examiners that have analyzed his case in their respective opinions. Thus, as the presumption of soundness is intact, the Board finds that it is unquestionable that the elevated blood pressure noted in service was later characterized and diagnosed as hypertension; and such hypertension has clearly continued since the Veteran’s second period of service. As such, service connection is warranted under 38 C.F.R. § 3.303(b). K. STANTON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. KAYS HUKILL 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.