Citation Nr: 21030020 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-04 227 DATE: May 17, 2021 REMANDED Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1980 to July 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in October 2019. Unfortunately, a full transcript of the hearing testimony was not preserved due to technical difficulties. The Veteran was offered the opportunity to appear at another hearing, however, he elected not to and requested that his claim be considered on the evidence of record. (8/20/2020, Hearing Request, p. 1). This case was previously before the Board in September 2020, on which occasion the claim was remanded. Entitlement to service connection for hypertension is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the Veteran's claims can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue of entitlement to service connection for hypertension. Stegall v. West, 11 Vet. App. 268, 271 (1998). In a September 2020 Board decision, the Veteran's claim was remanded for a new VA examination to address his claim of service connection for high blood pressure. In remanding the claim, the Board directed the examiner to "address whether the Veteran's current diagnosis of hypertension was at least as likely as not caused or aggravated (made worse) by any acquired psychiatric disability or any symptoms thereof." In accordance with the September 2020 remand directives, the Veteran was afforded a VA examination and medical opinion in February 2021. The examiner opined that the Veteran's hypertension was less likely than not related to service as no elevated blood pressure readings were documented during service. The examiner additionally noted that the Veteran informed military medical providers that his blood pressure was "a little high" prior to entering military service. Regarding whether the Veteran's hypertension was caused or aggravated by any acquired psychiatric disability, the examiner indicated that they were unable to provide an opinion on the matter as the Veteran had not undergone a VA psychiatric examination. (2/4/2021, C&P Exam, p. 2). The Board notes that subsequent to his hypertension examination, the Veteran was afforded a VA psychiatric examination and medical opinion, and based on the strength of said examination was granted service connection for other specified trauma and stressor related disorder in a February 2021 rating decision. In failing to furnish the requested medical opinion, the RO failed to substantially comply with the Board's previous remand directives. As such, the claim must be remanded in order to ensure compliance with the Board's remand directives. Additionally, the Board finds that the February 2021 medical opinion was inadequate, as it is based in part on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (a medical opinion based on inaccurate factual premise has no probative value). In this regard, in concluding that there were no elevated blood pressure readings during service, the examiner failed to address a May 1982 blood pressure reading of 138/88, which according to the American Heart Association is consistent with stage 1 hypertension. See Understanding Blood Pressure Readings, American Heart Association, last visited May 12, 2021, http://www.heart.org/en/health-topics/high-blood-pressure/understanding-blood-pressure-readings; (5/18/2015, STR - Medical, p. 29). Finally, the February 2021 examiner failed to apply the presumption of soundness in rendering an opinion. A veteran is presumed to be in sound condition when examined and accepted into the service except for defects or disorders noted when examined and accepted for service. 38 U.S.C. §§ 1111, 1137. To rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Anderson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence"). That is, the standard of proof for rebutting the presumption of soundness is not merely evidence that is "cogent and compelling, i.e., a sufficient showing, but evidence that is clear and unmistakable, i.e., undebatable...." Id. at 261. It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003) (internal citations omitted). In the present case, the February 2021 examiner relied on the Veteran's lay reports of blood pressure that was "a little high" prior to service as evidence that his hypertension predated his service. However, lay reports of a pre-existing disability are not sufficient to rebut the presumption of soundness. See Paulson v Brown, 7 Vet. App. 466, 470 (1995). While the Veteran did endorse subjective complaints of high blood pressure during his entrance examination, he was found to be clinically normal upon examination. (5/18/2015, Military Personnel Record, p. 61-64). As such, the Board finds that VA has not demonstrated by clear and unmistakable evidence that hypertension existed prior to service, and therefore the Veteran should be afforded the presumption of soundness. In light of the foregoing, the Board finds that the claim must be remanded for further medical development. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran's disabilities from December 2020 to the present. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's hypertension is at least as likely as not related to service. In rendering an opinion, the examiner must specifically address a May 1982 blood pressure reading of 138/88. (5/18/2015, STR - Medical, p. 29). The examiner is reminded that the Board has concluded that the Veteran was in sound condition when enrolled in service. The examiner must additionally opine whether the Veteran's current diagnosis of hypertension is at least as likely as not caused or aggravated (made worse) by any acquired psychiatric disability or any symptoms thereof. In rendering this opinion, the examiner should review all recent literature, including VA research, regarding whether a relationship exists between hypertension and acquired psychiatric disabilities. For all opinions provided, the examiner should provide a statement of the reasons or rationale, including citation to specific medical evidence of record and any relevant medical research or literature which informed the opinion. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Glenn, Associate 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.