Citation Nr: 21022221 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 15-06 639 DATE: April 15, 2021 ORDER Entitlement to service connection for hypertension is denied. REMANDED The claim of entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. The Veteran’s hypertension did not manifest during the first two periods of active duty or within one year of discharge and is not otherwise related to service. 2. Clear and unmistakable evidence shows that the Veteran’s hypertension existed prior to his last period of active duty and was not aggravated beyond its normal progression during service. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1960 to October 1960, from October 1961 to August 1962, and from November 1990 to July 1991. He also served in the National Guard. These issues come before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in 2018. The appellant is his surviving spouse. Pursuant to her application, she has been substituted into the claims on appeal, which were pending at the time of the Veteran’s death. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(e). In June 2018 and February 2020, the Board remanded this matter for additional development. A review of the record shows substantial compliance with the Board’s prior remand regarding the hypertension claim; therefore, additional development is not needed. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for hypertension. The appellant contends that the Veteran’s hypertension was the result of military service, including exposure to toxic fumes during Operation Desert Storm. The claim for compensation was received by VA in December 2011. Law and regulations A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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). Hypertension for VA purposes is defined as diastolic pressure predominantly 90 or greater and systolic pressure predominantly 160 or greater with diastolic pressure less than 90. The minimum compensable rating is for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. The Board notes that the Veteran’s hypertension qualifies as a “chronic condition” under 38 C.F.R. §§ 3.307 and 3.309. As such, an alternative method of establishing the second and third elements of service connection for those disabilities identified as a “chronic condition” under 38 C.F.R. § 3.309 (a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was “noted” during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303 (b). The Veteran’s service records show that the Veteran is a Gulf War Veteran. Pursuant to applicable law and regulations, VA has authorized the payment of compensation to any Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability where the disability becomes manifest during service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of disability of 10 percent or more not later than December 31, 2021. Under 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 in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection for infectious diseases. Inasmuch as hypertension is a clear and identifiable diagnosis, it is not a medically unexplainable chronic multi-symptom illness, or a diagnosed illness that the Secretary has determined warrants a presumption of service connection. Therefore, the Gulf War Presumption does not apply for claims based on hypertension. 38 C.F.R. § 3.317. However, the Veteran is not precluded from establishing service connection for a disease averred to be related to Gulf War service, as long as there is proof of such direct causation. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). An indication of past disorder or disability by a veteran on a report of medical history is not enough to prevent the presumption of soundness from attaching. Gray v. Nicholson, 21 Vet. App. 104 (2006). When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing 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. 38 U.S.C. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004) (citing 38 C.F.R. § 3.322 ). With respect to the clear and unmistakable burden there is a wealth of caselaw regarding what does and does not constitute aggravation. Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Evidence of a veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). The recurrence of pre-service symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1998). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Evidence and analysis The Board finds that the Veteran had hypertension. Post-service private treatment records contain multiple references to diagnoses of hypertension. However, there is no evidence of in-service manifestations of his hypertension. There is no evidence of manifestation within one year of discharge. A preponderance of the evidence is against finding that the hypertension was the result of military service. And clear and unmistakable evidence shows that hypertension existed prior to his last active duty period and was not aggravated beyond its normal progression during service. A review of the Veteran’s service treatment records (STRs) shows no complaints or treatment for hypertension. The Veteran’s blood pressure readings were 124/72 in May 1960, 119/80 in August 1960, and 122/79 in May 1991. The Veteran reported high blood pressure on his September 1983 Report of Medical history; however, his blood pressure was 110/80 on a September 1983 examination. In addition, the Veteran’s National Guard STRs reveal the following blood pressure readings: 114/74 in November 1963, 140/86 in July 1979, 117/87 in August 1987, 110/80 in September 1987, and 138/86 in April 1994. The record contains no medical evidence dated between October 1960 and October 1961, or between August 1962 and August 1963, indicating, within the first year of discharge from his first two active duty periods, onset of hypertension. The first clinical evidence of hypertension was found many years after the Veteran’s discharge from service in August 1962. As such, service connection for hypertension on a presumptive basis is not warranted. Private treatment records dated years after August 1963 refer to hypertension. However, none the records contain an opinion supporting the claim. The Veteran underwent a VA examination in September 2016. He was diagnosed with hypertension; however, no etiology opinion was rendered. A VA medical opinion was issued in February 2020. The examiner gave a negative opinion that hypertension was the result of military service. She stated that there was no medical evidence of any hypertension diagnosis or treatment during the first two periods of active duty in the early 1960s, and within one year post-discharge. She noted that the blood pressure readings were within normal limits and that there was no medical evidence found in the STRs regarding any evidence of or reporting of hypertension. The examiner then found that the Veteran’s hypertension clearly and unmistakably pre-existed his last active duty period but was not aggravated beyond its normal progression by military service. She noted that the Veteran self-reported a history of hypertension treatment in July 1979, which was 17 years post active duty and 10 years pre active duty. The examiner also noted that the Veteran had one elevated blood pressure reading in July 1979 with no medical evidence of diagnosis of treatment for hypertension from 1980 to 1995, which the appellant reported as the hypertension onset date. In addition, the examiner noted that there was no medical diagnosis, treatment, or history of hypertension during the Veteran’s last active duty period. Furthermore, the examiner stated that blood pressure rises with body weight and being overweight makes one more likely to develop. She also noted that the Veteran was in a weight control program in 1983. Finally, the examiner stated that the medical evidence did not support any aggravation of the claimed hypertension by service or exposure to toxins while serving in the Gulf War. The Board finds the VA opinion to be competent, credible, and probative. The examiner provided detailed rationale that took into consideration the Veteran’s lay statements and history as well as the evidence of record and provided a clear explanation that contained a clear conclusion and supporting data. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Furthermore, the VA opinion is the only probative evidence that addresses the issue of medical nexus. In light of the negative nexus opinion and lack of a positive opinion to contradict the negative evidence, there is simply no basis for a grant of service connection for the Veteran’s hypertension. The evidence of record demonstrates that the Veteran’s hypertension was not due to his first two active duty service periods. Clinical examinations during active duty service showed blood pressure readings within normal limits with no notations regarding a diagnosis of or treatment for hypertension. However, the evidence of record also demonstrates that the Veteran self-reported a hypertension diagnosis in July 1979 prior to his last active duty period. The Board finds that this evidence clearly and unmistakably shows that the Veteran’s hypertension existed prior to his last active duty period. However, the evidence of record does not demonstrate that the hypertension increased in severity during service in the early 1990s. A review of the pertinent medical evidence does not demonstrate in-service worsening of his pre-existing hypertension during the last active duty period. As noted above, there was no medical evidence of any diagnosis or treatment for hypertension. Blood pressure readings during the last active duty period were within normal limits. This evidence clearly shows that the Veteran’s hypertension did not experience any in-service worsening. Therefore, the Board finds that hypertension was not aggravated beyond its normal progression during the final period of military service. See 38 U.S.C. § 1153; Wagner, 370 F.3d at 1096. As such, service connection must be denied. In adjudicating this claim, the competence and credibility of lay statements must be considered by the Board. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The appellant contends that the Veteran’s hypertension was the result of his military service, including exposure to toxic fumes during Operation Desert Storm. While the appellant and Veteran may be credible to describe the particular symptoms which they observed and/or experienced, determining the etiology and diagnosis of hypertension requires specialized testing and medical knowledge or training. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the lay evidence here is outweighed by the medical evidence and the medical findings in the VA report. As the preponderance of the evidence weights against the claim, the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Another remand is warranted for the claim of entitlement to service connection for an acquired psychiatric disorder. The record contains February and March 2020 VA medical opinions addressing the claim. The reports indicate that the Veteran did not have a diagnosis of depression or anxiety. However, a December 2017 private treatment record notes a diagnosis of anxiety. An addendum report should address whether the anxiety relates to service. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim). The matter is REMANDED for the following action: Return the case to the VA examiner who issued the VA opinions on this matter, or to a suitable substitute, for issuance of an addendum medical opinion. After reviewing the claims file, the examiner should answer the following question: Is it at least as likely as not (i.e. 50 percent probability or more) that an acquired psychiatric disorder (e.g., anxiety) had its onset during service or is due to service, to include reported stressors involving exposures to incoming enemy fire and toxins, and fear of imminent death? The examiner should consider any psychiatric disorder diagnosed during the appeal period (e.g., anxiety diagnosed in December 2017). (Continued on the next page) Please explain the opinion in detail and provide a supporting rationale. C. J. McEntee Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.T. Massey, 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.