Citation Nr: 21022559 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 16-56 886 DATE: April 16, 2021 ORDER Entitlement to service connection for hypertension is granted. REMANDED Entitlement to service connection to a lumbar spine disability, to include as secondary to his service-connected bilateral knee disability, is remanded. Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease of the left knee, with chronic knee strain, is remanded. FINDING OF FACT The evidence is in a state of relative equipoise regarding whether the Veteran’s hypertension is related to service. CONCLUSION OF LAW The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1984 to July 1993 and from March 2003 to June 2003. The Veteran served additional time in the National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that new and material evidence was in the possession of VA within one year of the June 2013 rating decision for which the Veteran subsequently requested reconsideration based on new evidence. Thus, as new and material evidence was submitted within a year of the June 2013 rating decision, the Board finds that that decision did not become final. 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). In March 2021, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Hypertension The Veteran asserts that he incurred hypertension during service, and it has progressively become worse. To establish direct service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). For veterans who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities (including hypertension) are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a), 3.309 (a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disabilities specified as chronic under 38 C.F.R. § 3.309 (a)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The pertinent medical evidence shows that the Veteran has been diagnosed with hypertension since 2003. The record is not clear whether the Veteran was diagnosed with hypertension pursuant to the criteria of 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Thereunder, the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. Id. However, an April 2015 hypertension examination submitted by the Veteran’s physician reports a diagnosis of hypertension treated with continuous medication. The evidence is in a state of relative equipoise regarding whether the Veteran’s hypertension manifested to a compensable degree within one year of separation from service in June 2003. See 38 C.F.R. §§ 3.303, 3.307, 3.309. On the one hand, the private treatment records dated in the year following service do not specifically note blood pressure readings approximating compensable hypertension as defined under 38 C.F.R. § 4.104, Diagnostic Code 7101. However, private treatment records within one year of separation show that the Veteran had hypertension for which he was prescribed Diovan for control. In sum, while predominant hypertensive blood pressure readings manifesting to a compensable degree within one year of separation are not clearly demonstrated in the record, it is not clear if that is because the Veteran’s hypertension has been controlled by the use of Diovan and related hypertension medication, as shown by the Veteran’s treatment records. As such, the Board cannot find that a preponderance of the evidence is against a finding that the Veteran experienced an onset of compensable hypertension within the year following active duty. This is therefore an appropriate case in which to invoke VA’s doctrine of reasonable doubt and to grant the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Lumbar spine disability 2. Left knee disability First, the record reflects that VA obtained the Veteran’s active duty records, but it appears the Veteran’s complete reserve National Guard records are not part of the claims file. The Veteran’s complete National Guard reserve records are necessary to determine any additional periods of service including any ACDUTRA and/or INACDUTRA service. Therefore, a remand is necessary to obtain the Veteran’s reserve military records. Regarding the lumbar spine disability, the Veteran has asserted his private physician stated the Veteran’s lumbar spine disability has been aggravated by his service-connected bilateral knee disabilities. As there is an indication that the claimed disability may be associated with another service-connected disability and the evidence of record does not contain sufficient competent medical evidence to decide the claim, remand is required to provide the Veteran with a VA opinion. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Board finds that further development is necessary before a decision on the merits may be made regarding the issue of entitlement to an initial disability rating in excess of 10 percent for left knee disability. The Veteran was last provided a VA examination relating to his left knee disability in June 2018, nearly three years ago. During the March 2021 Board hearing, the Veteran stated that his left knee disability has increased in severity. In light of the Veteran’s assertions, a new VA examination is required so that the current nature and severity of the Veteran’s service-connected disability may be determined. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination). The matters are REMANDED for the following action: 1. Verify the dates and types of the Veteran’s service in the National Guard, including any periods of ACDUTRA and/or INACDUTRA. 2. Obtain all the Veteran’s Reserve service treatment records (STRs). 3. Obtain an addendum medical opinion on the issue of secondary service connection for the lumbar spine disability. The examiner should provide an opinion as to the following: (a.) Is it at least as likely as not (i.e., to a 50 percent or greater degree of probability) that the service-connected bilateral knee disabilities caused the Veteran’s lumbar spine disability? (b.) Is it at least as likely as not (i.e., to a 50 percent or greater degree of probability) that the service-connected bilateral knee disabilities aggravated (i.e., worsened in severity beyond the normal progression) the Veteran’s lumbar spine disability? (Continued on the next page)   4. Schedule Veteran for a VA examination to determine the current nature and severity of his service-connected left knee disability. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. St. Laurent, 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.