Citation Nr: 21021169 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 10-13 342 DATE: April 12, 2021 ORDER Entitlement to service connection for ventral hernia, including as secondary to the service-connected liver transplant, is granted. Entitlement to service connection for hypertension, including as secondary to service-connected disabilities, is denied. FINDINGS OF FACT 1. The Veteran is currently diagnosed with a ventral hernia; the current ventral hernia is etiologically related to his service-connected liver transplant. 2. The Veteran is currently diagnosed with hypertension; symptoms of hypertension were not chronic in service, were not continuous since service separation, and did not manifest to a compensable degree within one year of service separation; the currently diagnosed hypertension was not incurred in service and is not etiologically related to service; the current hypertension was not caused, or worsened beyond its normal progression by, the Veteran’s other service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for hernia as secondary to the service-connected liver transplant are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for hypertension, including as secondary to service-connected disabilities, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active duty service from January 1972 to March 1977. In a July 2017 decision, the Board denied service connection for hypertension and hernia, both to include as secondary to the Veteran’s service-connected disabilities. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2018 order, the Court granted a Joint Motion for Remand (JMR), vacating the July 2017 decision and remanded the case to the Board for compliance with the Court order. Thereafter, in April 2019, the Board remanded the Veteran’s claims for additional development. This development was completed and the Veteran’s claims have returned to the Board. Service Connection The Veteran generally contends that his hypertension and hernia disabilities are both either directly related to his military service or were caused and/or aggravated by his service-connected disabilities. The Board has reviewed the record and cannot find any specific argument as to why or how these two disabilities could be related to service or other service-connected disabilities. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 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. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In this case, a hernia is not a “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) do not apply to this issue. However, hypertension is a “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) apply to this issue. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 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 Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Service connection for hernia The Veteran generally seeks service connection for a hernia. After a review of all the lay and medical evidence of record, the Board finds the weight of the evidence demonstrates that service connection for a ventral hernia is warranted. The Board finds the most probative evidence of record to be the January 2020 VA examination. The examiner found that the Veteran has a diagnosis of ventral hernia and that this hernia is at least as likely as not related to the Veteran’s liver transplant. The examiner stated that there was an attempt to repair the hernia in October 2007, prior to the Veteran’s application for service connection. The Board notes that in the Veteran’s original application for service connection, he applied for service connection for “hernia” and did not specify which type of hernia. The agency of original jurisdiction (AOJ) ordered a gastrointestinal (hiatal) hernia examination, which found a negative nexus and denied the Veteran’s claim on that basis. As the Veteran has not specified which hernia he would like to have service-connected, just that he wanted the condition service-connected, the Board finds that service connection is warranted for a ventral hernia. Based on the foregoing evidence, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the current ventral hernia is caused by the service-connected liver transplant, and that service connection for a ventral hernia as secondary to the service-connected liver transplant is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. Because the Board is granting service connection on a secondary basis, all other theories of entitlement to service connection are rendered moot. 2. Service connection for hypertension The Veteran generally seeks service connection for hypertension, including as secondary to service-connected disabilities. The Board finds that while the Veteran has a current diagnosis of hypertension, the probative evidence of record does not demonstrate that his hypertension is etiologically related to service or to his other service-connected disabilities. The chronic disease presumptive service questions for the Board are whether the Veteran has a chronic disease (hypertension) that manifested chronic symptoms in service, continuous symptoms since service, or to 10 percent within one year of separation from active service in March 1977. The Board concludes that, while the Veteran has hypertension that is a chronic disease listed under 38 C.F.R. § 3.309(a), the weight of the lay and medical evidence shows that symptoms of hypertension were not chronic in service, were not continuous since service, and did not manifest to a compensable degree within one year of service separation in March 1977; therefore, the chronic disease presumptions are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Additionally, the Board finds that the weight of the evidence shows that the current hypertension did not have its onset during active service, and was not otherwise etiologically related to active service. The service treatment records reflect that the Veteran was not diagnosed with hypertension, or treated for high blood pressure, at any time during service. There is no indication from the service treatment records that the Veteran had a cardiovascular injury or disease during active duty service from January 1972 to March 1977. Service treatment records do reflect that the Veteran was injured in a fall from a telephone pole after contact with an electrical power line during service in July 1976, and sustained severe burns to the left leg with fracture, fracture of the left humerus, burns to the left forearms, right ankle anterior surface, right forearm, and required below knee amputation of the left leg. The two medical examinations after the July 1976 fall are silent for cardiovascular problems, and the Veteran denies any problems on the contemporaneous reports of medical history related to cardiovascular conditions. As such, the above evidence does not demonstrate chronic symptoms of hypertension during active service. The lay and medical evidence weighs against a finding of continuous symptoms of hypertension since service separation in March 1977; therefore, presumptive service connection under the provisions of 38 C.F.R. § 3.303(b) is not warranted based on either “chronic” in-service or “continuous” post service symptoms. As discussed above, neither service treatment records or the service separation examination report indicates any history or findings or diagnosis for hypertension. The earliest evidence of hypertension is not indicated until 2006 in a January 2006 private treatment record showing the Veteran was diagnosed with hypertension, nearly 29 years after separation from active service in 1977 and nearly 28 years outside of the applicable presumptive period. On the question of direct nexus between the current hypertension and active service, the Board finds that the weight of the evidence is against finding that the currently diagnosed hypertension is causally related to service. The weight of the evidence shows that hypertension had its onset after active service, and that the Veteran was not diagnosed with hypertension until January 2006. The Veteran underwent a VA examination in January 2020, and the VA examiner provided an addendum opinion in December 2020. In the December 2020 opinion, the VA examiner opined that it is less likely than not that the current hypertension is etiologically related to service. The VA examiner explained that service treatment records do not reflect a three day hypertension reading, which is considered the gold standard for diagnosing chronic hypertension. Additionally, service treatment records do not reflect any medication or treatment for hypertension. Finally, the VA examiner noted that an October 1976 medical board evaluation shows blood pressure was measured at 110/82. As to secondary service connection for hypertension, the Board finds that the weight of the evidence is against secondary service connection for hypertension due to service-connected disabilities. In this case, the Veteran is currently service connected for the following disabilities: hepatitis C, left below the knee amputation due to electrical burns, peripheral neuropathy of the right lower extremity, fracture of the left femur, degenerative arthritis of the left and right knees, fracture of the left humerus, third degree burn of the ulnar aspect of the left forearm, surgical scar associated with hepatitis C, gout of the right elbow, third degree burn of the ulnar aspect of the right forearm, third degree burn of the anterior ankle area of the right foot, and gout of the right great toe. The evidence that weighs against secondary service connection for hypertension includes the January 2020 VA examiner’s opinion. The January 2020 VA examiner opined that it is less likely than not that the current hypertension was wither caused, or worsened beyond its natural progression by, any of the service-connected disabilities. The January 2020 examiner explained that the Veteran has several risk factors for systemic hypertension (male, increasing age over 40 years old, and obesity), which is of a vascular etiology and not related to any of the other service-connected disabilities. The VA examiner further explained that the current hypertension was not caused or worsened beyond its natural progression by the service-connected hepatitis C, to include cirrhosis and liver transplant. If the Veteran’s hypertension were related to his hepatitis C and/or liver condition, then his liver transplant would have logically “cured” the systemic hypertension. Instead, the hypertension has been unchanged even though the Veteran underwent a curative treatment with the liver transplant. The examiner differentiated between portal hypertension, which is commonly caused by cirrhosis of the liver, compared to systemic hypertension: the Veteran has a current diagnosis of systemic hypertension, not portal hypertension. The VA examiner explained that if the Veteran had portal hypertension, it would have been “cured” by the liver transplant. Finally, the VA examiner opined that it is less likely than not that the current hypertension was caused or worsened beyond its normal progression by the Veteran’s other service-connected disabilities. The VA examiner explained that the Veteran’s other service-connected disabilities are of the musculoskeletal, neurological, and dermatological pathologies and thus, do not affect or have any relationship to the tunica media/vascular pathology of systemic hypertension. After considering all the evidence, both lay and medical, the Board finds that the weight of the evidence is against hypertension being directly related to service, chronic since service, and related to a service-connected condition. Although the Veteran has asserted that the hypertension is related to service, to include his service-connected conditions, he is a lay person and, under the facts of this particular case that include hypertension manifesting 29 years after service, does not have the requisite medical training or credentials to be able to render a competent medical opinion regarding the cause of the hypertension. The etiology of the Veteran’s hypertension is a complex medical etiological question dealing with the origin and progression of the cardiovascular system, and such a disability is diagnosed primarily on clinical findings and physiological testing such as blood pressure readings. Thus, while the Veteran is competent to report some hypertension symptoms experienced at any time, under the facts of this case that include multiple years between service separation and the onset of symptoms, the Veteran is not competent to opine on whether there is a link between the hypertension and service. See Kahana, 24 Vet. App. at 438 (recognizing that lay competency is determined on a case by case basis); Jandreau v. Nicholson, 492 F.3d 1372 at 1377 n.4 (Fed. Cir. 2007) (lay persons are not competent to diagnose cancer); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). The Board finds that because the Veteran is not competent to render this opinion it has no probative weight. For the foregoing reasons, the Board finds that the weight of the evidence is against direct, secondary, or presumptive service connection for hypertension. See 38 C.F.R. §§ 3.303, 3.307, 3.309, and 3.310. As the preponderance of the evidence is against service connection, the benefit of the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. E. Choi Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.