Citation Nr: 21015678 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-61 071 DATE: March 18, 2021 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for a liver condition is denied. FINDINGS OF FACT 1. The Veteran’s hypertension was not present in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran’s liver condition began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the Veteran’s hypertension have not been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317, 4.104. 2. The criteria for entitlement to service connection for the Veteran’s liver condition have not been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1980 to April 1981 and from February 2003 to February 2004, with additional service in the Army National Guard of Puerto Rico. These matters came before the Board of Veterans’ Appeals (“Board”) on appeal from a June 2017 rating decision issued by the Department of Veterans Affairs (“VA”) Regional Office (“RO”). The Board remanded these matters in November 2020 for obtaining VA medical examinations and opinions. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that the RO substantially complied with the directives set forth in the November 2020 remand, and the December 2020 medical opinions for both issues are adequate and provided clear rationales while discussing the questions raised in November 2020 Board’s remand. See Stegall, 11 Vet. App. at 271; See also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board’s remand directives is required under Stegall). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 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). Under 38 C.F.R. § 3.317, VA will pay compensation to a Persian Gulf veteran for disability due to an undiagnosed illness or medically unexplained chronic multi symptom illness, provided that certain requirements are met. For purposes of 38 C.F.R. § 3.317, the term “Persian Gulf veteran” means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). The Southwest Asia theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). In determining whether service connection is warranted for a disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990); 38 C.F.R. § 3.102. 1. Entitlement to service connection for hypertension is denied. The Veteran has asserted that his hypertension is related to his military service. He also asserted that his disabilities started when he was on active duty in Persian Gulf, where he was exposed to an infected environment and intensive pollution. Initially, the Board finds that the Veteran is a Persian Gulf veteran for purposes of 38 C.F.R. § 3.317 because his service personnel records show that he served in the Southwest Asia theater of operations during his second period of active service. Therefore, the presumptive service connection provisions of 38 C.F.R. § 3.317 are applicable in the Veteran’s case. The Veteran’s service personnel records also confirm that he had active service in Guantanamo Bay. The question for the Board is whether the Veteran has a current disability of hypertension that began during service or is at least as likely as not related to an in-service injury, event, or disease. For VA compensation purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 mm or greater; and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm or greater with diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). There is no question of the existence of current disability of hypertension because the examiner, during November 2020 VA examination, diagnosed the Veteran with hypertension with blood pressure readings of 172/94, 161/95 and 165/94. As far as in-service incurrence or aggravation of hypertension and any causal relationship between hypertension and in-service disease or injury are concerned, the Veteran was not diagnosed with hypertension during service, however there are few readings of slightly elevated blood pressure noted in service treatment records. Therefore, the Board remanded the matter in November 2020 for obtaining a medical opinion to determine the nature and etiology of hypertension and specifically directed the examiner to discuss the in-service elevated blood pressure readings. A VA examiner diagnosed the Veteran with hypertension during November 2020 in-person examination and opined that the Veteran’s hypertension is less likely as not caused by or a result of active military service. While providing rationale for his opinion in December 2020, the examiner stated that there is no evidence of hypertension on active military service, neither within a year of discharge from service or aggravated during active military service since there is no supporting evidence on service treatment record. There are several elevated blood pressure readings noted in service treatment record and within a year of discharge from service, but no treatment was given until 2015, when the diagnosis was made. High blood pressure readings on different years and dates cannot be used to make a diagnosis of high blood pressure. A diagnosis is made after blood pressure monitoring is done and found with consecutives high blood pressure readings during several days, not months or years. The Board notes that there is an April 2009 letter from a private physician Dr. Ortiz, which states that the Veteran was diagnosed with hypertension as soon as he came back from service, which was controlled by exercise and diet without taking any medication. The above private opinion is less probative than December 2020 VA medical opinion, since the private practitioner did not provide any rationale and there is no indication that this practitioner physically examined the Veteran or reviewed pertinent medical evidence in the claims file. Instead, the opinion appears to be based on inaccurate information, which is inconsistent with VA and service treatment records that do not show any diagnoses of hypertension, and the Veteran’s report during November 2020 examination where he stated that he never received medical treatment until 2015 and his condition has been stable. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The December 2020 VA examiner’s opinion is more probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives more probative weight to the VA examiner’s opinion. As described earlier, the Veteran has asserted that his hypertension is related to his military service. In a June 2018 statement, the Veteran’s wife asserted that her husband disability of hypertension began after he came back from Persian Gulf deployment. She also asserted that his husband was diagnosed with hypertension in September 2004 during his treatment at a VA facility. The Board notes that the September 2004 VA treatment record associated with the file does not reflect any hypertension or elevated blood pressure reading. The Board has considered the Veteran and his wife’s statements regarding his hypertension and acknowledges that they may sincerely believe his hypertension was caused by his military service. However, the Veteran or his wife is not competent to provide a nexus opinion because the issue is medically complex, and the Veteran has not demonstrated that he or his wife have the medical education, training, or expertise to make such a conclusion. See Bostain v. West, 11 Vet. App. 124, 127 (1998) (finding that assertions, in the absence of evidence that a veteran has the expertise to render opinions about medical matters, are not probative). Consequently, the Board gives more probative weight to the December 2020 VA medical opinion and concludes that there is no evidence of presence of hypertension during active service, and that there is no causal relationship between the Veteran’s current disability of hypertension and the claimed hypertension during service. Hence, service connection is not warranted for hypertension based on direct service connection. The Board notes that hypertension in enumerated as one of the chronic diseases under 38 C.F.R. § 3.309(a); and can also be analyzed for entitlement to presumptive service connection for a chronic disease. 38 C.F.R. § 3.309(a). If a Veteran has a current, chronic disability listed in 38 C.F.R. § 3.309(a), a nexus can be presumed if there is evidence of chronic disease manifested as such during active service; or chronic disease manifested to a compensable degree within a specified period after active service (usually 1 year); or if there is competent, credible, and persuasive evidence of continuity of symptomatology since active service. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). The competent and probative evidence of record does not demonstrate that the Veteran’s hypertension manifested to a compensable degree within one year of active duty service. As described above the Veteran’s service treatment records show few readings of slightly elevated blood pressure, but he was not diagnosed with hypertension during service or within one year of the service, and the December 2020 VA medical opinion has clarified that high blood pressure readings on different years and dates cannot be used to make a diagnosis of high blood pressure. Diagnosis of high blood pressure is made after blood pressure monitoring is done and found with consecutives high blood pressure reading during several days not months or years. As far as continuity of symptomatology is concerned, there are no diagnosed symptoms of hypertension in service or continuity after the service. Per November 2020 examination, the diagnosis of hypertension is from 2015, which is more than eleven years after the separation from the service. As described above, the Board notes an April 2009 letter from a private physician Dr. Ortiz noting that the Veteran was diagnosed with hypertension as soon as he came back from service, however this opinion does not have any rationale or supporting medical evidence. The careful review of the VA medical treatment records since the Veteran’s separation from service does not show continuity of diagnosed symptoms or continue high blood pressure readings after separation from service. The Board does not find a continuity of symptomatology for hypertension; hence the chronic diseases presumption does not apply in this case under 38 C.F.R. § 3.309(a). As described earlier, under legislation specific to Persian Gulf War veterans, service connection may be established for a qualifying chronic disability resulting from an undiagnosed illness that became manifest during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more no later than December 31, 2021. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). The term “qualifying chronic disability” means a chronic disability resulting from any of the following (or any combination of any of the following): (A) an undiagnosed illness; (B) a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under subsection (d) warrants presumptive service-connection. See 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i). Such chronic disability must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 C.F.R. § 3.317(a)(1). Objective indications of a chronic disability include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. 38 C.F.R. § 3.317(a)(4). Hence, the Board has considered whether service connection is warranted for the Veteran’s diagnosed hypertension under the Persian Gulf War presumptions. See 38 C.F.R. § 3.317. As discussed above, a Veteran is entitled to the presumption, if among other factors, he has an undiagnosed illness or exhibits objective indications of a qualifying medically unexplained chronic multi-symptom disability. In contrast, hypertension is not an undiagnosed illness, as the disability does, in fact, carry a diagnosis. As hypertension is not an undiagnosed disorder or a medically unexplained chronic multi-symptom illness, the Gulf War presumption does not apply in this case. After reviewing all the evidence in record and based on the above analysis, the Board concludes that the Veteran’s hypertension was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. A preponderance of the evidence is against the claim, consequently, entitlement to service connection for hypertension is hereby denied. 2. Entitlement to service connection for a liver condition is denied. The Veteran has asserted that his liver condition related to his military service, which began during service when he had abdominal pain. He also asserted that his disabilities started when he was on active duty in Persian Gulf, when he was exposed to infected environment and intensive pollution. The Veteran has also submitted a May 2017 joint statement from his fellow servicemembers stating that the Veteran complained about pain in the liver area during service. As describe above, the Board finds that the Veteran is a Persian Gulf War veteran for purposes of 38 C.F.R. § 3.317 because his service personnel records show that he served in the Southwest Asia theater of operations during his second period of active service. Therefore, the presumptive service connection provisions of 38 C.F.R. § 3.317 are applicable in the Veteran’s case. The Veteran’s service personnel records also confirm that he had active service in Guantanamo Bay. The question for the Board is whether the Veteran has a current disability of liver that began during service or is at least as likely as not related to an in-service injury, event, or disease. There is no question of the existence of current liver condition because the examiner, during November 2020 VA examination, diagnosed the Veteran with fatty liver. As far as in-service incurrence or aggravation of liver condition and any causal relationship between liver condition and in-service disease or injury are concerned, the Veteran was not diagnosed with a liver condition during service. However, in his statements in support of claim, specifically the one from August 2020, and May 2017 joint statement from his fellow servicemembers indicate that the Veteran experienced abdominal pain during service. Therefore, the Board remanded the matter in November 2020 for obtaining a medical opinion to determine the nature and etiology of liver condition and specifically directed the examiner to discuss the Veteran’s lay statements regarding in-service abdominal pain. A VA examiner diagnosed the Veteran with fatty liver during November 2020 in-person examination and provided an opinion in December 2020 that the Veteran’s current fatty liver condition or abdominal pain while on service is less likely as not caused by or a result of active military service, since there is no evidence on service treatment record or within a year from discharge noting that. There is no evidence of liver cyst on 2019 abdominal sonogram. Fatty liver disease is a common condition caused by the storage of extra fat in the liver. It happens after many years and patient can develop pain only when the condition becomes chronic and develops liver cirrhosis, which is not the case for this patient. There is no evidence of elevated liver enzymes on examination. The Board finds that the above opinion is adequate and provides a clear rationale, while discussing the Veteran’s claimed abdominal pain during service; and probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran has asserted that his liver condition is related to his military service and started during service when he had abdominal pain. The Board has considered the Veteran’s statements regarding his liver condition and acknowledges that he may sincerely believe that his liver condition was caused by his military service. However, the Veteran is not competent to provide a nexus opinion because the issue is medically complex, and the Veteran has not demonstrated that he has the medical education, training, or expertise to make such a conclusion. See Bostain v. West, 11 Vet. App. 124, 127 (1998) (finding that assertions, in the absence of evidence that a veteran has the expertise to render opinions about medical matters, are not probative). Consequently, the Board gives more probative weight to the December 2020 medical opinion and concludes that there is no evidence of presence of liver condition during active service, and that there is no causal relationship between the present liver condition and the claimed abdominal pain during service. Hence, service connection is not warranted for the Veteran’s liver condition based on direct service connection. The Board has considered whether service connection is warranted for the Veteran’s diagnosed fatty liver as chronic diseases presumption under 38 C.F.R. § 3.309(a) and finds that the fatty liver condition is not one of the enumerated diseases subject to presumptive service connection. See 38 C.F.R. § 3.309(a). However, the Board notes that cirrhosis of the liver is one of the enumerated chronic diseases, but the examiner has clearly noted in November 2020 examination that the Veteran does not have cirrhosis of the liver. Hence, chronic diseases presumption does not apply here. The Board has also considered whether service connection is warranted for the Veteran’s diagnosed fatty liver under the Persian Gulf War presumption. See 38 C.F.R. § 3.317. As discussed above, a Veteran is entitled to the presumption, if among other factors, he has an undiagnosed illness or exhibits objective indications of a qualifying medically unexplained chronic multi-symptom disability. During May 2011 Persian Gulf War screening, the examiner opined that fatty liver is a disease with a clear and specific etiology and diagnosis, not likely related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The examiner also stated that there is no evidence in the medical literature to establish a possible etiological relationship between specific exposure events in Southwest Asia and this medical condition. Since fatty liver is not an undiagnosed disorder or a medically unexplained chronic multi-symptom illness, the Persian Gulf War presumption does not apply in this case. See 38 C.F.R. § 3.317. After reviewing all the evidence in record and based on the above analysis, the Board concludes that the December 2020 VA medical opinion and other evidence of medical history have greater evidentiary and probative value than the Veteran’s lay statements regarding the etiology of his liver condition, without supporting evidence contemporaneous to the Veteran’s service. A preponderance of the evidence is against the claim, consequently, entitlement to service connection for a liver condition is hereby denied. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tariq, Nadeem, Associate Attorney 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.