Citation Nr: 21020906 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 14-23 895 DATE: April 8, 2021 ORDER Entitlement to service connection for a hypertension disability, to include as secondary to a service-connected depressive disorder or due to environmental exposure from the Persian Gulf is denied. FINDING OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s hypertension is due to environmental exposures in the Persian Gulf or that it is a qualifying chronic disability under 38 C.F.R. § 3.317. 2. The preponderance of the evidence is against finding that the Veteran’s hypertension disability is etiologically related to his active duty service or a period of ACDUTRA/INACDUTRA or that it manifested to a compensable degree within a year following separation from active duty service. 3. The preponderance of the evidence is against finding that his hypertension disability is proximately caused or aggravated by his service-connected depressive disorder. CONCLUSION OF LAW The criteria for entitlement to service connection for a hypertension disability, to include as secondary to a service-connected disability or due to environmental exposure in the Persian Gulf have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army National Guard with a period of active duty for training (ACDUTRA) from January 2000 to July 2000. The Veteran also has multiple periods of ACDUTRA and inactive duty for training (INACDUTRA). He also has a period of active duty service from October 2005 to August 2007. This matter come before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in May 2016, August 2018, and December 2019 but was remanded for additional development of the claim and to obtain medical opinions addressing the different avenues of his service-connection claims. In a July 2019 supplemental statement of the case (SSOC), his claim was denied. On September 2019, the Board denied the Veteran’s claim for service connection for his hypertension disability, to include as secondary to a service-connected depression disability or due to environmental exposure in the Persian Gulf. The Veteran appealed the September 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2020 joint motion for remand (JMR), the parties stipulated that the Board erred in not providing adequate reasons or bases for its decision regarding service connection based on continuity of symptomatology. The parties indicated that it was unclear from the Board’s decision whether it found entitlement to service-connection based on a theory of a continuity of symptoms raised by the September 4, 2007 and July 23, 2008 blood pressure (BP) reading. As such, the parties moved to vacate the September 2019 Board decision and to remand for readjudication of the claim. The motion was granted. This issue is again before the Board for readjudication. 1. Hypertension, to include as secondary to a service-connected depression disability or due to environmental exposure in Persian Gulf The Veteran seeks service connection for his hypertension disability. Specifically, he asserts his hypertension was shown within 30 days after separation from active duty service on August 25, 2007. See April 2015 Notice of Disagreement. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Certain chronic diseases, such as hypertension, are subject to presumptive service connection if it manifests to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). The regulation further provides that a disabling hypertension within the one-year period will be given the same benefit of service connection as any of the chronic disease listed under 38 C.F.R. § 3.309 (a). Alternatively, under 38 C.F.R. § 3.303(b), when a chronic disease is suspected in service, but there is insufficient evidence demonstrating such, service connection may be warranted by demonstrating a continuity of symptomatology after service. Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). As the Veteran served with the Army National Guard and has periods of active duty service and ACDUTRA/INACDUTRA, the Board notes that the presumption of aggravation, the chronic disease presumption, including continuity of symptomatology, does not apply to periods of ACDUTRA and INACDUTRA. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a); Smith v. Shinseki, 24 Vet. App. 40, 48 (2010); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). VA will also grant service connection on a secondary basis if there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). VA will also pay compensation to a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that (1) became manifest during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016; and (2) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317 (a)(1). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness; and (3) a diagnosed illness that the Secretary determines warrants a presumption of service connection. 38 U.S.C. § 1117 (d). A “qualifying chronic disability” means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multisymptom illnesses (MUCMI) that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service-connection. 38 C.F.R. § 3.317 (a)(2)(i). Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a Veteran is not precluded from establishing service connection with proof of direction causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The regulation provides that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101. For VA purposes, hypertension means that the diastolic pressure is predominantly 90 mm Hg or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160 mm Hg or greater, with a diastolic pressure of less than 90 mm Hg. Id. As the Veteran has asserted multiple theories of entitlement to service connection for his hypertension disability, the Board will first address the presumptive theories. Regarding the Veteran’s assertion that his hypertension may be related to environment exposure in the Persian Gulf, the Board finds that the Veteran was deployed to the Persian Gulf during his period of active duty service from October 2005 to August 2007. As such, the Veteran has qualifying service to be considered under the presumption for Gulf War veterans. However, upon review of the medical evidence, the Board finds that the Veteran’s hypertension is not caused by environmental exposure in the Persian Gulf, an undiagnosed illness, a medically unexplained chronic multisymptoms illness, or a diagnosed illness that the Secretary determines warrants a presumption of service connection. The Veteran was afforded a Gulf War examination in May 2017; however, the VA examiner did not provide a medical opinion as to whether his hypertension is related to environmental exposure in the Persian Gulf. As such, another VA examination was obtained in March 2019. Unfortunately, the VA examiner opined that it was less likely as not caused by or a result of a specific exposure event experienced during the Persian Gulf War. The VA examiner noted that this opinion was rendered after careful consideration and review of all medical records, an in-person examination and interview of the Veteran, review of the most recent medical literature in text and online forms, and reliance on personal medical expertise. The examiner further noted that hypertension, its causes, treatment, and etiology were very well understood and clearly explained. The examiner noted that medical literature indicates that hypertension is caused by long-term force of the blood against artery walls. However, there is no evidence in the medical literature that establishes a relationship between the Veteran’s hypertension and a specific exposure event experienced during his service in the Persian Gulf. As there is no evidence to the contrary, the Board finds this opinion to be probative and persuasive, as the VA examiner’s rationale was clear and specific as to the nature of hypertension and its causes. In addition, the rationale was clear as to the sources of information relied upon to render the opinion. The Board further finds that the Veteran does not have a qualifying chronic disability as the Veteran has a clear diagnosis of hypertension as noted in his medical treatment record. Moreover, as explained by the March 2019 VA examiner, hypertension and its causes, treatment, and etiology are well understood and clearly explained. As such, the Veteran’s hypertension disability would not qualify as a MUCMI. Finally, hypertension is not a diagnosed illness that the Secretary determines warrants a presumption of service connection. As the preponderance of the evidence is against a finding of service connection based on environmental exposure in the Persian Gulf, his claim must be denied. Regarding the assertion of presumptive service connection on the basis of a chronic disease and/or continuity of symptomatology, the Veteran is reminded that only his period of active duty service is to be considered under this presumption. In this regard, the Board finds that the Veteran’s current diagnosis of hypertension is a chronic disability under 38 C.F.R. § 3.309 (a). However, the Board finds that the evidence does not show that his hypertension manifested to a compensable degree within a year after separation from his period of active duty service in August 2007. Upon separation from active duty service in August 2007, a September 2007 VA treatment record indicated a BP reading of 150/90. The Veteran was diagnosed with elevated BP and given a machine to monitor his BP at home and was directed to return to the clinic in a month for a follow-up. In a subsequent October 2007 follow-up appointment, the VA doctor noted that his elevated BP was again normal following a BP reading of 138/82 and a recheck BP reading of 132/87. An April 2015 VA treatment record also reflected the Veteran’s September 2007 elevated BP reading. Another BP reading of 161/90 was further noted below the September 2007 BP reading but no date was associated with that reading. Further review of his medical treatment records within the one-year period reflects a BP reading of 138/89 in a January 2008 post-mobilization periodic health assessment (PHA). In a July 23, 2008 periodic oral evaluation his BP reading was recorded as 166/102. In a subsequent July 26, 2008 STR, his BP reading was 170/92. In this regard, the Board acknowledge that the Veteran has several elevated BP readings during his active duty service and within the one year following separation from service. However, the evidence does not show that he was diagnosed with a hypertension disability or that his hypertension was confirmed by readings taken two or more times on at least three different days. Rather, the evidence shows one high blood pressure reading on several different days. Accordingly, as the preponderance of the evidence is against a finding that the Veteran’s hypertension disability manifested to a compensable degree within a year following separation from his active duty service, entitlement to presumptive service connection based on a chronic disease must be denied. With respect to the parties’ agreement in the November 2020 JMR, the Board will now address whether the Veteran is entitled to service connection based on continuous symptomatology. Regarding this theory of entitlement, the Board reiterates that the applicable service period is the Veteran’s active duty service from October 2005 to August 2007. As provided under 38 C.F.R. § 3.303 (b), 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. When the fact of chronicity is not adequately supported, then a showing of continuity after discharge is required to support the claim. Upon review of the pertinent evidence, the Board finds that continuity of symptomatology related to hypertension has not been shown. Specifically, the Board finds that his STRs reflects complaints of headaches on a few occasions. However, these complaints of headaches were related to an injury to his head and cheek in July 2006 and gastritis in November 2006. There is no indication in his STRs that these headaches were attributable to a hypertension disability. In a July 2007 post-deployment health assessment, he endorsed having headaches, dizziness, fainting, and/or light headedness. However, no referral was made for him to be examined for any blood pressure issues. The evidence further fails to show any evidence of continuous symptoms after separation from service in August 2007. While there is evidence of some elevated blood pressure readings within one year of service (150/90 and 161/90 on September 4, 2007; and 166/102 on July 23, 2008), there is no evidence that the Veteran complained of symptoms related to his hypertension. Although his BP reading was 150/90 in September 2007, he denied having any cardiovascular conditions. He further denied fainting, headaches, dizziness, weakness, gait disturbances, or alteration of special senses. Additionally, there is no notation of symptoms related to a hypertension disability noted in his October 2007 follow-up visit for his elevated BP in September 2007. Notably, in a January 2008 post-deployment health assessment he endorsed “No” to having headaches, dizziness, fainting, and/or light headedness and no referral was made to evaluate the Veteran for any cardiac issues. A review of his post-service VA treatment records further does not demonstrate any ongoing complaints of symptoms associated with his hypertension diagnosis. Accordingly, as there is no evidence that he experienced any symptoms related to hypertension in service, this fact weighs against the credibility of any statement that he had any symptoms of hypertension in service. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013). If the Veteran had experienced symptoms related to hypertension, it would be expected that there were elevated BP readings accompanying symptoms attributable to hypertension. However, there is no such indication in the available medical evidence. In this regard, the Board affords the most probative weight to the medical evidence. As there is no probative evidence that the Veteran experienced any symptoms related to hypertension in service, nor was hypertension noted or suspected in service, the Board finds that the preponderance of the evidence is against a finding of entitlement to service connection based on 38 C.F.R. § 3.303(b). As such, his claim on this theory of entitlement to service connection must be denied. Nonetheless, the Veteran is not precluded from establishing direct service-connection or secondary service-connection. With regards to direct service connection, the Board finds that the Veteran has a current diagnosis of hypertension as noted in a May 2019 VA examination and in a June 2014 VA treatment record. Regarding an in-service occurrence, his period of active duty service from October 2005 to August 2007, his September 2005 soldier readiness program examination (SRP) indicated a BP reading of 130/64 and he was cleared for deployment. The Veteran further did not endorse having any heart conditions in his March 2006 pre-deployment assessment. The Veteran’s BP during his period of active service were generally within normal readings with exception to an BP reading of 144/70 in April 2007. In a July 2007 post-deployment health assessment, the Veteran reported having headaches during deployment, but he was not referred for a cardiac evaluation. The Veteran’s BP readings throughout his ACDUTRA and INACDUTRA period further reflects normal BP readings and some elevated BP readings in May 2003, November 2003, and March 2004. As previously discussed, the Veteran’s post-service treatment records also indicated high blood pressure readings in September 2007 and July 2008. As such, the Board finds that an in-service occurrence has been satisfied. However, the Board finds that the medical nexus requirement has not been met. In a March 2019 VA examination, the VA examiner opined that his current hypertension disability was less likely than not related to his service. The VA examiner stated that his STRs were silent on a formal diagnosis of hypertension. The VA examiner noted that the Veteran’s registered high blood pressures in September 2007 and in July 2008 and stated they were reported within a year after separation for his active duty service in October 2005 to August 2007. However, the VA examiner stated that those blood pressure readings did not meet the criteria to be considered as hypertension for VA purposes. The VA examiner noted that for VA purpose, the initial diagnosis of hypertension or isolated systolic hypertension must be confirmed by reading taken two or more times on at least three different days. Based on a review of the medical records, he had three readings of higher blood pressure on two different days. Accordingly, service connection for hypertension on a direct service is not warranted. The Board acknowledge that the Veteran has several elevated BP readings during service and during his ACDUTRA and INACDUTRA periods. However, the evidence fails to show that he was diagnosed with a hypertension disability during his period of active duty service or ACDUTRA/INACDUTRA periods. Moreover, there is no evidence that hypertension was confirmed by readings taken two or more times on at least three different days. The Board acknowledge the Veteran’s assertion that his hypertension was shown within 30 days after separation from service. See April 2015 Notice of Disagreement. While the Board acknowledge that the Veteran had elevated blood pressure readings within a year following separation from his active duty service, these elevated BP readings do not satisfy criteria for a diagnosis of hypertension of isolated systolic hypertension for VA purposes. Moreover, while lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, the etiology of his hypertension disability falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As there is no other competent medical opinion to refute the March 2019 VA examiner’s conclusion or to otherwise relate the Veteran’s current hypertension to his active duty service or periods of ACDUTRA/INACDUTRA, the Board affords the most probative weight to the March 2019 and June 2019 VA medical opinions as it is based on a complete review of the Veteran’s claims file and supported by adequate rationales. Finally, regarding the theory of secondary service connection, the Board finds that the evidence does not show that his hypertension disability was proximately caused or aggravated by his service-connected depressive disorder. While a July 2014 VA doctor stated some of the Veteran’s elevated BP readings were likely exacerbated by stress, a June 2019 VA examiner ultimately opined that his hypertension was less likely as not proximately caused or aggravated by his service-connected depression. Specifically, the June 2019 VA examiner indicated there was no pertinent evidence in the medical records reviewed that showed the Veteran had been hospitalized due to uncontrolled blood pressure or malignant hypertension after being diagnosed with depression or because of his depression. The examiner noted this was consistent with a finding of no aggravation. In addition, there was no pertinent evidence in the medical records that the Veteran had developed any complication related to his blood pressure, such as a heart attack, stroke, aneurysm, heart failure, or chronic renal disease after being diagnosed with depression or because of his depression. The examiner again noted this was consistent with a finding of no aggravation. The examiner further noted there was no evidence in the medical literature that established a relationship between the Veteran’s current diagnosis of hypertension and his service-connected condition of depression or its stressor. The examiner cited an article from the Mayo Clinic and noted that, based on the medical literature, high blood pressure can be caused by an underlying condition such as obstructive sleep apnea, kidney problems, adrenal gland tumors, thyroid problems, certain congenital defects in the blood vessels, and illegal drugs. However, the examiner noted that the literature does not show that hypertension is due to or caused by any mental health conditions, to include depression. In this regard, while the June 2014 VA doctor noted that his elevated BP readings may be exacerbated due to stress, no explanation was provided. Moreover, there is no evidence that the Veteran was hospitalized for any symptoms of hypertension at that time due to his stress. In this regard, as the June 2014 VA doctor’s statement lacks any explanation, the Board finds that it is speculative. Rather, the Board finds the June 2019 VA examiner’s opinion to be the most probative evidence. The June 2019 VA medical opinion is well supported by a clear rational, cites supporting medical literatures, and offers a well-reasoned conclusion based on the examiner’s medical expertise. In this regard, the Board finds that the preponderance of the evidence is against a finding that his hypertension is proximately caused or aggravated by his service-connected depression. (Continued on the next page)   Based on the foregoing reasons, the Board finds that entitlement to service connection for a hypertension disability, to include as secondary to a service-connected depressive disorder or environmental exposure from the Persian Gulf is denied. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Xiong, 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.