Citation Nr: 21024399 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 10-36 488 DATE: April 22, 2021 ORDER Entitlement to service connection for hypertension is denied. REMANDED Entitlement to a disability rating in excess of 30 percent for right eye conjunctivitis with keratoconus from February 1, 2018 is remanded. FINDING OF FACT The evidence of record does not reflect a diagnosis of hypertension during the period on appeal. CONCLUSION OF LAW The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.102, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from April 2005 to April 2009. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and were previously remanded by the Board in March 2016, December 2017, February 2019, and December 2020. The record reflects that in an October 2015 Report of General Information telephone contact, the Veteran indicated that he wished to withdraw his request for a travel Board hearing. Accordingly, his travel Board hearing request is considered withdrawn. 38 C.F.R. § 20.704(e) (2019). The record reflects that the Veteran received a letter in September 2020 indicating that he could request a virtual tele-hearing instead of waiting for a travel Board hearing. As discussed above, the Veteran does not have a pending hearing request, as his prior request for a travel Board hearing was withdrawn. In a March 2016 decision, the Board denied service connection for hypertension. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court), and in May 2017, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the portion of the March 2016 Board decision that denied service connection for hypertension and remanding the matter for action consistent with terms of the JMPR. In August 2017, Veterans of Foreign Wars of the United States (VFW) was appointed as the Veteran’s representative through a VA Form 21-22a. In May 2018 correspondence filed after the foregoing appeal was certified to the Board, VFW informed the Veteran and VA that it wished to withdraw its representation of the Veteran, listing several good cause reasons. The Board finds that VFW’s representation of the Veteran has been properly withdrawn in accordance with 38C.F.R. §14.631. In September 2020 correspondence by VA, the Veteran was provided with a VA Form 21-22a and given the opportunity to appoint a new representative, but the Veteran did not appoint a new representative. As the Veteran has not appointed a new representative, the Board concludes that the Veteran is unrepresented. The Board’s December 2020 remand directed the RO to obtain any outstanding VA treatment records and obtain an addendum VA medical opinion regarding the nature and etiology of the Veteran’s claimed hypertension. The Board finds that there has been substantial compliance with its December 2020 remand directives, and it will proceed with adjudication of the issues on appeal. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, the evidence must show: (1) the existence of a present disability; (2) 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). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for chronic disabilities, such as hypertension, if such are shown to have been manifested to a compensable degree within one year after the veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Entitlement to service connection for hypertension The Veteran seeks service connection for hypertension, which he asserts is related to his active military service.  Specifically, he contends that he was informed that he had elevated blood pressure readings during service.   Upon review of the relevant evidence, the Board finds that service connection for hypertension is not warranted.  While the Veteran’s service treatment records reflect a March 2008 note of irregular blood pressure, blood pressure readings taken over a two-week span between January 7, 2009 to January 9, 2009 and January 12, 2009 and January 16, 2009 did not produce a diagnosis of hypertension. Further, the Veteran’s January 2009 separation examination shows a normal heart examination and no diagnosis of hypertension. During the Veteran’s February 2009 VA examination, the Veteran reported to the examiner that he was diagnosed with hypertension in 2008, but he denied experiencing any symptoms of hypertension. His blood pressure readings were found to be normal upon examination, and the examiner indicated that there was no diagnosis of hypertension. While the February 2018 VA examiner also found there to be insufficient evidence to warrant a diagnosis of hypertension, stating that, despite having elevated systolic blood pressure trends in the 140 range during service, the Veteran’s blood pressure normalized after discharge from service based on a review of in-office blood pressure trends since 2011, which show mild elevation with systolic blood pressure in the 130 range, the Veteran was afforded an additional VA examination in July 2020. The 2020 VA examiner indicated that the Veteran did not have a diagnosis of hypertension. He explained that the Veteran’s diastolic pressure is primarily under 90 throughout the Veteran’s post-service treatment records, and that a few instances of slightly higher than 90 readings are only isolated instances, as the Veteran’s systolic reading was predominantly under 90 from separation from service to the present. In response to the Board’s February 2019 remand directive to explain the relevancy of the Veteran’s in-service elevated blood pressure readings on any current diagnosis, the examiner indicated that, while annotations in the Veteran’s post-service blood pressure readings show that these isolated elevated readings were more likely due to distress, that these readings did not result in a diagnosis of hypertension (meaning persistently elevated blood pressure, not just in isolation), which would require a systolic reading that is predominantly 160 or greater and a diastolic reading that is predominantly 90 or greater. A January 2021 VA addendum opinion was sought to clarify the nature and etiology of any diagnosis of hypertension made during the pendency of the Veteran’s appeal, to include a diagnosis of “essential hypertension” listed on a January 15, 2019 VA Medical Center problem list. The examiner opined that the January 15, 2019 listing of “essential hypertension” is only supported by a single elevated blood pressure reading taken the day before of 169/93, and not by the remaining blood pressure readings from separation from service to the present. The examiner states that the January 14, 2019 notation also indicates that, while the Veteran was advised to check his blood pressure at home, no such reports were identified. The examiner concluded that it is less likely than not that any diagnosis of hypertension made during the pendency of the Veteran’s appeal, to include the January 15, 2019 listing of “essential hypertension,” had its onset in service or is otherwise directly related to service, as the totality of the in-service blood pressure readings, as well as post-service blood pressure readings do not support a diagnosis of hypertension. The examiner explained that the majority of blood pressure readings range from 115 to 134 systolic and from 55 to 78 diastolic, which is not in line with the one isolated reading from January 15, 2019 of 169/93, therefore, a diagnosis of hypertension is not supported by the medical evidence of record, as the Veteran’s blood pressure readings are not persistently elevated to warrant such a diagnosis. As such, the Veteran has no current disability for which service connection may be granted.  Despite his assertions that he presently has hypertension, the Veteran has not offered any competent and credible medical evidence supporting his assertions nor has he demonstrated that he has the knowledge, training, or education required to diagnose this type of medical disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). The requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary’s adjudication of the claim.”  McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).  Here the Veteran has not shown by medical evidence the presence of hypertension, nor does the evidence establish any physical functional impairment that would suggest a disability even in the absence of a diagnosis.  See Saunders v. Wilkie, No. 17-1466 (Fed. Cir. 2018).  As the claims file does not show any treatment for or a diagnosis of hypertension (meaning persistently elevated blood pressure, not just in isolation), the Veteran’s claim of entitlement to service connection for hypertension is denied.  Taking into account all the relevant evidence of record, the Board finds that the weight of the evidence is against the Veteran’s claim for service connection for hypertension.  Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim.  Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND Entitlement to a disability rating in excess of 30 percent for right eye conjunctivitis with keratoconus from February 1, 2018 is remanded. February 2021 post-service VA treatment records reflect that the Veteran indicated that his right eye symptoms had worsened since his last VA examination in June 2018. Specifically, he stated that his vision had declined and that he was noticing more floaters. Therefore, a new VA examination is needed to ensure that the record reflects the current severity of the Veteran’s right eye disability. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and current severity of his service-connected right eye disability. The Veteran’s electronic claims file must be accessible for review by the VA examiner in conjunction with the examination. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiner should be performed and the results reported in detail. A detailed rationale for all opinions expressed should be provided. 2. After completing all indicated development, the Agency of Original Jurisdiction should readjudicate the Veteran’s claim. If the benefit sought on appeal remains denied, the Veteran should be furnished with a supplemental statement of the case, given the opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if warranted. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Houle, 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.