Citation Nr: 21029604 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 16-30 313 DATE: May 14, 2021 ORDER Entitlement to service connection for hypertension is denied. FINDING OF FACT The preponderance of the evidence shows hypertension was not present in service or until many years thereafter, it is not caused by an injury while serving with a Reserve Component, and it is not related to service or to an incident of service origin. CONCLUSION OF LAW The criteria for service connection for a hypertension disability are not met. 38 U.S.C. §§ 101, 106, 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1977 to April 1980 and from July 1991 to August 1992. The Veteran also had almost 13 years of intervening service with a Reserve Component. Unfortunately, the Veteran died in February 2020 while this matter was on appeal. In March 2021, the Veteran's spouse was substituted as the appellant in this appeal. The Service Connection Claim Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or from injury incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C. §§ 101(24), 106, 1131. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including hypertension, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, presumptive periods do not apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. §§ 101(21) and (24); 38 C.F.R. §§ 3.6(a) and (d). ACDUTRA is, inter alia, full-time duty performed by member of the National Guard of any State. 38 C.F.R. § 3.6(c)(3). In this regard, in order to establish service connection for the claimed disorders, 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. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability 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." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Initially, the Board notes that the record shows the Veteran being diagnosed and treated for hypertension. See e.g. November 2015, January 2017, May 2019, January 2020 treatment records. The Boards also finds that the Veteran is competent to report on the events he experienced while on active duty and to report on manifestations of his disability. See Davidson, supra. However, a close review of the Veteran's service treatment records (STRs) do not show he was diagnosed or treated for ongoing hypertension while in service. In several examinations, both while in service and in the period between his active service, the Veteran mentioned other problems, but did not mention problems with high blood pressure. See e.g. November 1991, July 1992 examinations. Indeed, in a May 1992 examination, an examiner indicated the Veteran did not have a diagnosis of hypertension. Multiple blood pressure readings during the Veteran's time in service indicated that his blood pressure was 124/80, 120/70, and 110/75. See e.g. May 1986, August 1981, May 1986 readings. The Board notes there were a few high systolic readings shown. For example, in a November 1991 examination, the Veteran's blood pressure was found to be 143/59 and in a July 1992 examination, the Veteran's blood pressure was found to be 150/75. However, the Board notes that while there were a few individual high blood pressure readings, the Veteran's readings over time do not indicate a diagnosis of hypertension as defined by VA while in service and there is no indication of hypertension or isolated systolic hypertension confirmed by readings of 160/90 or greater. See 38 C.F.R. § 4.104, Note (1). Given this record, the Board finds as the November 1991 and July 1992 examiners must have found, that the most probative evidence of record shows that any problem the Veteran may have had with blood pressure while on active duty was, at best, transient in nature and did not cause hypertension. See Owens, supra. Accordingly, the Board finds that the most probative evidence of record shows that the Veteran did not develop hypertension due to a disease or injury while on active duty or hypertension due to an injury while serving with a Reserve Component despite the periodic elevated blood pressure readings. 38 U.S.C. §§ 101, 106, 1110, 1131; 38 C.F.R. § 3.303(a); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). As to service connection for hypertension based on the presumptions found at 38 C.F.R. § 3.309(a), the record does not show that it manifested in the first year following his separation from a period of active duty service. Therefore, the Board finds that these presumptions do not help the appellant establish service connection for the Veteran's hypertension. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307. Next, the Board will consider whether the appellant is entitled to service connection for hypertension due to continuity of symptomatology under 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(b). In this regard, and as noted above, at service records are negative for a diagnosis of hypertension. See Colvin, supra. Additionally, the Veteran's record does not indicate his hypertension manifested until many years after his last period of service. While the Board is certain that the Veteran believed and the appellant continues to believe the hypertension started on a period of qualifying service and continued to the Veteran's death, the Board nonetheless finds such claims incredulous given the fact that the diagnosis of hypertension does not appear in the record until many years after the Veteran's last period of qualifying service. The statements and recollections of events from so many years ago are simply not accurate based on the evidence. At this point, the Board finds that the service medical records, Reserve Component examinations, and the post-active duty medical records provide the most probative evidence of record and it is against finding continuity of symptomatology. See Owens, supra. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with hypertension since his last period of qualifying service despite the claims to the contrary. See 38 U.S.C. § 101, 106, 1110, 1131; 38 C.F.R. § 3.303(b). Furthermore, the Board finds that the record does not show that the Veteran's post-service hypertension was due to his military service. See 38 U.S.C. §§ 101, 106, 1110; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In this regard, the Board notes that the Veteran was not provided a VA examination to obtain an etiology opinion. However, given the above record which is negative for complaints, diagnoses, or treatment for any of hypertension in-service and for many years after his separation from his last period of qualifying service, the Board finds that the criteria to obtain an etiology opinion have not been met. See Paralyzed Veterans of America, et. al., v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that the criteria for obtaining an etiology opinion have not been met when the evidence of record does not establish that the veteran suffered an event, injury, or disease in service because no reasonable possibility exists that providing a medical examination or obtaining a medical opinion would substantiate the claim); Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of a lay statement). The Board also finds that neither the Veteran nor the appellant is competent to provide the missing nexus opinion because neither has the required medical expertise to provide an answer to this complex medical question (i.e., what caused the current hypertension). See Davidson, supra. Accordingly, the Board finds that the preponderance of the evidence is against the appellant's claim of service connection for the Veteran's hypertension. 38 U.S.C. §§ 101, 106, 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). NEIL T. WERNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.