Citation Nr: 21029786 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-00 383 DATE: May 17, 2021 ORDER Service connection for hypertension is granted. REMANDED Entitlement to service connection for diabetes mellitus. FINDING OF FACT Hypertension arose in service. CONCLUSION OF LAW The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1971 to January 1973. This appeal is before the Board of Veterans' Appeals (Board) from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In August 2018, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. In September 2019, the Board dismissed a claim of service connection for high cholesterol and denied the remaining claims. The Veteran appealed the denials to the United States Court of Appeals for Veterans Claims (Court), which vacated the denial in a January 2021 order granting a joint motion for partial remand (JMPR). The issues are therefore again before the Board. Entitlement to service connection for hypertension The Veteran claims service connection for hypertension. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) 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. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. VA regulations require that hypertension or isolated systolic hypertension be confirmed by readings taken two or more times on at least three different days. For compensation purposes, hypertension means that the 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. Service treatment records reflect that the Veteran's blood pressure readings were recorded at 120/90 on September 12, 1972; 130/100, 120/100, 140/105, and 150/110 on September 26, 1972; 130/82 on September 27, 1972; and 150/100, 136/100, and 130/92, on September 28, 1972. The September 28, 1972 service treatment record noted an impression of mild hypertension. Subsequent service treatment records do not show further complaints or treatment pertaining to hypertension. Post-service treatment records note that the Veteran was diagnosed with hypertension in 2003, 30 years after his separation from service. Specifically, a June 12, 2006, private treatment record noted that the Veteran was diagnosed with essential hypertension 3 years earlier. The Veteran underwent a VA examination in April 2015. After an examination of the Veteran and review of the claims file, the examiner opined that his hypertension was less likely than not related to service. After noting the Veteran's elevated hypertension readings on September 26, September 27, and September 28 of the year 1972, as well as the September 28, 1972, assessment of mild hypertension, the examiner explained that that there is no record of treatment for hypertension in service. It was further noted that there is no record or documentation of persistence or continuation of hypertension after service, and that the Veteran submitted private medical records showing that he was diagnosed with hypertension in 2003, almost 30 years after service separation. In view of the observations of the parties to the JMR, the Board has reconsidered the evidence and finds that a state of equipoise has been reached on whether The hypertension arose in service. Service treatment records reflect and assessment of mild hypertension in service that arguably meets the criteria of Diagnostic Code 7101. Moreover, hypertension is a chronic disability under 38 C.F.R. § 3.309(a). As raised by the JMPR, under 38 C.F.R. § 3.303(b) when a chronic disability is diagnosed in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Here, the only evidence against service connection is the gap between the in-service hypertension diagnosis and the current diagnosis. Upon reconsideration, the Board finds this time gap, in and of itself, is insufficient to rebut the presumption of chronicity under 38 C.F.R. § 3.303(b) for chronic diseases such as hypertension. For these reasons, the Board finds that service connection is warranted. REASONS FOR REMAND Entitlement to service connection for diabetes mellitus is remanded. The Veteran claims service connection for diabetes mellitus. The Board finds that remand is necessary to provide the Veteran with a VA examination. VA has a duty to provide a medical examination where there is (1) competent evidence of a current disability or symptoms thereof; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability is associated with service; and (4) insufficient competent medical evidence to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The Veteran's treatment records establish a current disability; specifically, that he has been diagnosed with diabetes mellitus since 2003. The JMPR instructs that the Board must address a September 1972 blood fasting glucose level of 102 milligrams per deciliter. It is unclear from the JMPR why this test is indicative of diabetes, much less why the test's relevance should have been apparent to the Board. As such, the Board requires an expert opinion to explain whether the in-service test identified to the JMPR has anything to do with his current diabetes mellitus. The matter is REMANDED for the following action: 1. Obtain and associate with the claims file any additional medical evidence that may have come into existence but has not been associated with the record. 2. Schedule the Veteran for a VA examination for his diabetes. The claims file must be reviewed by the examiner. The examiner should offer an opinion as to whether it is at least as likely as not (i.e. 50 percent probability or more) that the Veteran's current diabetes mellitus is related to his September 1972 blood fasting glucose level of 102 milligrams per deciliter, or is otherwise related to service. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing the above, and any other development deemed necessary, readjudicate the appeal. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Gallagher, 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.