Citation Nr: 21028064 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-66 023 DATE: May 10, 2021 ORDER Entitlement to service connection for hypertension is denied. REMANDED Entitlement to service connection for a right ankle is remanded. Entitlement to service connection for a neck disability to include right arm numbness is remanded. Entitlement to service connection for GERD is remanded. FINDING OF FACT The Veteran's hypertension was not caused by or aggravated by his service connected posttraumatic stress disorder (PTSD). CONCLUSION OF LAW Entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from February 2001 to September 2005. In February 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ) and a transcript is of record. In April 2020, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for the Veteran to receive VA examinations for his right ankle disability, neck disability, GERD, and hypertension. The Veteran received new VA examinations in June 2020 and November 2020. The Board finds that the new VA opinion for his hypertension provided an adequate rationale based on review of the record. However, as discussed in the remand portion below, the Board finds the VA opinions concerning the Veteran's right ankle, neck, and GERD disabilities were inadequate. The Board acknowledges that the Veteran's attorney made a general argument regarding the VA's duty to assist and duty to notify. However, the Veteran's attorney failed to advance any specific argument regarding either duty. Furthermore, neither the Veteran nor his attorney have raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (1) 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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2020); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disability or injury. 38 C.F.R. § 3.310(a) (2020). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(a) (2017); Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). For veterans who served 90 days or more after December 31, 1946, the chronic diseases listed in 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), including hypertension, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101(3), 1112(a)(1) (2018); 38 C.F.R. §§ 3.307(a), 3.309(a) (2020). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2020). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Hypertension The Veteran contends that his hypertension is caused or aggravated by his service-connected PTSD. He does not contend that it began in service, began within one year of separation from service, or is otherwise related to service. The record also does not support direct or presumptive service connection. The Veteran received a VA examination in November 2017. The examiner was unable to confirm that the Veteran had a hypertension diagnosis. The examiner noted that the Veteran took medication for his blood pressure, but it was controlled with medication. In July 2019, the Veteran received another VA examination. The examiner noted that the Veteran had elevated blood pressure but no definitive hypertension diagnosis. The Veteran self-medicated with metoprolol samples and clonidine, which were prescribed for another disability not hypertension. The examiner acknowledged that anxiety and stress can produced elevated blood pressure. However, this elevation is transitory and does not lead to the development of chronic sustained hypertension. Accordingly, the examiner concluded that the Veteran's elevated blood pressure readings were not secondary to his PTSD. Furthermore, the examiner noted that the medical records showed that the Veteran's blood pressure, while frequently elevated, was interspersed with normal blood pressure readings. In June 2020, an additional opinion was provided. The examiner again noted that the Veteran has only been diagnosed with "elevated blood pressure without a diagnosis of hypertension." The examiner noted that a review of the Veteran's blood pressures at a VA Medical Center (VAMC) over the previous 9 years showed many elevated pressure readings greater than 140/90. The examiner stated, "[c]learly, this veteran has hypertension that has not been recognized nor treated." With regard to whether PTSD caused the Veteran's hypertension, the examiner noted that while anxiety and stress can produce elevations of blood pressure and heart rate, "...these are transitory during those periods of exacerbation and do not lead to the development of chronic sustained hypertension." Therefore, the examiner found that it was less likely than not that the hypertension was caused by PTSD. Regarding aggravation, the examiner noted that features of PTSD can produce "transient" elevations of blood pressure but "neither can produce chronic sustained hypertension nor permanently aggravate hypertension beyond its natural progression." Aggravation by a service connected disability is not required to be permanent for secondary service connection to be established. Ward v. Wilkie, 31 Vet. App. 233 (2019). This portion of the medical opinion is not probative evidence because the examiner required that aggravation be permanent. Therefore it will not be afforded any probative weight and will play no role in this decision. However, the examiner also provided affirmative evidence that no aggravation has occurred at all. The examiner explained that, "[i]n fact, [the] Veteran's hypertension has been progressively improving and more readily controlled over the past six years despite the presence of PTSD." This portion of the opinion is probative evidence that aggravation did not occur. The Board finds that secondary service connection is not warranted for the Veteran's hypertension. In his September 2017 claim and February 2018 NOD, he stated that his hypertension is secondary to his PTSD. He has not provided lay statements explaining why he believes his hypertension was caused or aggravated by his PTSD, including at his hearing. Determining the etiology of hypertension requires medical inquiry in to biological processes and physiological functioning. Internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown to have the skills, medical training, or experience needed to provide a competent etiology opinion for his hypertension. The VA examiners provided competent, credible evidence against the Veteran's lay assertions. The VA opinions were based on a review of the file and the examiners' medical knowledge, and were supported by rationales. They are afforded higher probative value than the Veteran's conclusory statement that his hypertension is secondary to his PTSD. Therefore, secondary service connection is not warranted. REASONS FOR REMAND 1. Right Ankle and Neck Disabilities The Veteran received new VA examinations for his right ankle and neck disabilities in November 2020. However, the negative opinions were based primarily on the lack of medical evidence. The VA examiners failed to adequately consider the lay statements by the Veteran. The Veteran testified that his right ankle has hurt since service, yet the examiner opined there was no nexus to service because there were no medical records documenting the Veteran's right ankle symptoms. Likewise, the examiner found his neck disability was not related to his car accident because it was not documented in the record, despite the Veteran's lay statement that shortly after the accident he experienced feelings of pins, needles, and numbness. 2. GERD 3. A VA opinion was obtained for the Veteran's GERD and the examiner considered whether his GERD was "secondary to" his PTSD. The examiner explained, "GERD results from a structural and functional abnormality of the gastroesophageal sphincter such that it does not close during gastric contractions, resulting in the reflux of stomach contents up into the esophagus. There is no physiologic mechanism whereby PTSD could alter the function or anatomy of the GE sphincter, and therefore it is less likely than not that his GERD is secondary to his PTSD." This rationale is sufficient for the causation prong of a secondary service connection claim. However, the remand stated the examiner also determine whether the Veteran's PTSD aggravated his GERD. To be adequate, a VA opinion must provide separate rationales for both causation and aggravation. Atencio v. O'Rourke, 30 Vet. App. 74 (2018). Additionally, the Board requested that an examiner determine whether medication used for the Veteran's PTSD caused or aggravated his GERD. The examiner did not provide an opinion regarding the medication taken for his PTSD. The matters are REMANDED for the following action: 1. Return the Veteran's claims file to the examiner who provided the November 2020 VA opinion for the Veteran's right ankle disability so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. A new physical or telehealth examination is only required if deemed necessary by the examiner. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right ankle disability began during active service or is related to an incident of service. The examiner must consider the Veteran's lay statements that he has had right ankle pain since service. For the purposes of this remand only, and for the limited purpose of conducting the examination and providing a medical opinion, the examiner should assume that the Veteran's lay statements concerning his right ankle are true. If there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's recollection is inconsistent with the principles of medical science and/or the evidence in this case. The examiner should specifically address the Veteran's lay statements and must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Return the Veteran's claims file to the examiner who provided the November 2020 VA opinion for the Veteran's neck and right arm disability so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. A new physical or telehealth examination is only required if deemed necessary by the examiner. The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's neck disability began during active service or is related to an incident of service, including his in service car accident. The examiner must consider the Veteran's lay statements that shortly after the accident he felt pins, needs, and numbness in his arm. For the purposes of this remand only, and for the limited purpose of conducting the examination and providing a medical opinion, the examiner should assume that the Veteran's lay statements concerning his neck and right arm are true. If there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's recollection is inconsistent with the principles of medical science and/or the evidence in this case. The examiner should specifically address the Veteran's lay statements and must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Return the Veteran's claims file to the examiner who provided the June 2020 GERD opinion so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. A new physical or telehealth examination is only required if deemed necessary by the examiner. The examiner must opine as to the following: a.) Whether it is at least as likely as not that the Veteran's GERD was aggravated beyond its natural progression by his service-connected PTSD. There is no requirement that aggravation be permanent in nature. b.) Whether it is at least as likely as not that the Veteran's GERD was proximately due to or the result of the medication he takes for his service-connected PTSD. c.) Whether it is at least as likely as not that the Veteran's GERD was aggravated beyond its natural progression by the medication he takes for his service connected PTSD. There is no requirement that aggravation be permanent in nature. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 5. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Brunot, 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.