Citation Nr: 21026091 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-37 444 DATE: April 29, 2021 ORDER Entitlement to service connection for hypertension, to include as secondary to service-connected status post ureterolithotomy for right nephrolithiasis is denied. FINDING OF FACT The preponderance of the evidence is against a finding that hypertension was caused by or incurred in service, or that hypertension was caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension, to include as secondary to service-connected status post ureterolithotomy for right nephrolithiasis, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1978 to March 1991, and from February 2001 to October 2001, with additional service in the Army Reserves. This case comes on appeal of an October 2013 rating decision. The Veteran testified before the Board in May 2019. This matter has previously been before the Board in December 2019 and November 2020. In each instance, the Board remanded the case for additional development to afford the Veteran full compliance with VA’s duty to assist. 1. Entitlement to service connection for hypertension, to include as secondary to service-connected status post ureterolithotomy for right nephrolithiasis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). Moreover, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected as well. Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Per VA regulations, the term “hypertension” means that diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. The record demonstrates that the Veteran was given a diagnosis of hypertension on an August 2003 VA treatment and has been on medication for the treatment of hypertension. Therefore, the Board acknowledges a current diagnosis. At issue is whether hypertension was caused by or incurred in service, or whether hypertension was caused or aggravated by a service-connected disability. There are two primary theories of entitlement to service connection for hypertension in this case. The first is service connection on a direct basis, under the theory that hypertension had an in-service onset. The second is that hypertension was caused or aggravated by the Veteran’s status post ureterolithotomy for right nephrolithiasis. Regarding service connection on a direct basis, the Board notes the Veteran’s contention in his May 2019 hearing that he was first diagnosed with hypertension during service in 1988 and that he began receiving medication for hypertension at that time. A thorough review of the Veteran’s service treatment records does not support this contention. Indeed, during the Veteran’s first period of service, there is nothing to indicate a diagnosis of hypertension, whether meeting the VA definition of hypertension or otherwise. The Veteran’s blood pressure was recorded on multiple occasions. Although his blood pressure was elevated at various times during service—primarily in association with emergency room visits and surgery—such elevation was never consistent. In a July 1990 treatment note, the Veteran’s past medical history showed that the Veteran was not taking any medications. Likewise, in treatment between the Veteran’s two periods of service, there is no indication of a hypertension diagnosis. The Veteran was examined periodically in conjunction with his reserve duty and had normal blood pressure readings while never reporting that he was taking medication for hypertension. At a January 2001 initial medical review, when he was called up for his second period of active duty service, the examiner reported that the Veteran was in good health and fully fit. Although there is no separation examination of record for that period, in October 2001, the Veteran was seen for an abdominal hernia, at which time his blood pressure was 145/81, which is not indicative of a hypertension diagnosis. The first indication of a hypertension diagnosis is in post-service treatment in August 2003, nearly two years after the Veteran’s second discharge. The Veteran’s active problem list in his VA medical record shows the onset of hypertension as 2003. In its December 2019 remand, the Board requested a medical opinion as to whether the Veteran’s hypertension had in-service onset. In February 2020, an examiner opined that hypertension was less likely than not incurred in service. In providing an explanation, the examiner then stated that, in her opinion, the Veteran’s onset of hypertension occurred during a period in service, but the medical records lack evidence to support an accurate and specific timeframe during a period of active duty. Therefore, the evidence supported that it was less than likely that hypertension was incurred during active duty or within a one-year period following release from active duty. Although confusing, this opinion effectively demonstrates that there is no medical rationale to support an in-service onset of hypertension. Indeed, the examiner explicitly stated that there was no medical reason to support the theory that hypertension had its onset during service. The Board must rely on the examiner’s findings only to the extent that they are supported by adequate medical rationale. Therefore, the only probative portion of this examiner’s opinion is that hypertension did not have its onset in service. Thus, regarding service connection on a direct basis, there is no evidence to support the assertion that hypertension had its onset during service. Moreover, there is no evidence that the nature of the Veteran’s service resulted in the later development of hypertension. Therefore, service connection for hypertension on a direct basis is not warranted. In addition to service connection on a direct basis, the Board noted in its December 2019 decision that the question of service connection on a secondary basis had been raised by the record. At that time, the Board observed that, in an addendum opinion following a November 2015 kidney examination, Dr. R.M.T. opined that the Veteran’s kidney conditions were at least as likely as not affecting the Veteran’s blood pressure, “either directly or indirectly.” The Board acknowledged at the time that Dr. R.M.T. did not provide any medical rationale in support of a link between the conditions, and that it was unclear whether Dr. R.M.T. was simply commenting on fluctuations in the Veteran’s blood pressure, or whether Dr. R.M.T. was implying an etiological connection. The Board also noted that the provider who had actually performed the November 2015 examination reported that the Veteran’s high blood pressure readings at the time were unrelated to the Veteran’s kidney disease. This conclusion was similarly unsupported by any discussion or explanation. Accordingly, the Board remanded the claim to obtain a medical opinion. In February 2020, VA obtained a medical opinion regarding an etiological link between the Veteran’s kidney condition and hypertension. The examiner opined that it was less likely than not that hypertension was caused by a service-connected kidney condition. By way of rationale, the examiner stated that there was no evidence of active or recurrent kidney dysfunction related to the Veteran’s service-connected status post ureterolithotomy for right nephrolithiasis. Regarding aggravation, the examiner then gave an opinion as to whether hypertension was a pre-existing condition that was aggravated during service. The Board deemed these specific medical opinions inadequate in its December 2020 remand. First, the Board noted that the Veteran had been assigned a 60 percent rating for status post ureterolithotomy for right nephrolithiasis based on a November 2015 VA examination’s findings of a decrease in kidney function. Therefore, the February 2020 examiner’s assertion that there was no evidence of recurrent kidney dysfunction was not accurate. Furthermore, regarding aggravation, whether hypertension pre-existed service was not at issue. It appeared that the examiner had misunderstood the question of whether the Veteran’s service-connected kidney condition had aggravated his hypertension beyond its natural progression. Accordingly, the Board remanded the claim to obtain a new medical opinion. In December 2020, the agency of original jurisdiction obtained such an opinion. There, the examiner opined that it was less likely than not that the Veteran’s service-connected status post ureterolithotomy for right nephrolithiasis had either caused or aggravated the Veteran’s hypertension. By way of rationale, the examiner explained that nephrolithiasis is not an established primary etiology of hypertension according to medical literature. The examiner further explained that hypertension was an exceedingly common condition which often occurs without any specific predisposing etiology. Moreover, given the history of the Veteran’s blood pressure ranges, hypertension had developed in a typical fashion, consistent with the natural progression of the disability. The examiner expressed agreement with the November 2015 VA examiner’s findings and stated that, to the extent Dr. R.M.T.’s addendum opinion—discussed above—indicated a relationship between the Veteran’s hypertension and kidney condition, such was not supported by any medical evidence. The Board finds the December 2020 opinion to be based on a full review of the Veteran’s record and supported by sufficient medical rationale. The opinion is therefore adequate and probative. The only evidence of record to support a causal link between the Veteran’s hypertension and kidney condition is that of Dr. R.M.T. As has been discussed, that opinion is not supported by any medical rationale. Thus, based on the above, the preponderance of the evidence is against findings that hypertension was either caused by or incurred in service, or caused or aggravated by a service-connected disability. As the preponderance of the evidence is against these findings, the “benefit of the doubt” rule is not applicable and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Giaquinto, 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.