Citation Nr: 21032363 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 17-53 713 DATE: May 26, 2021 ORDER Entitlement to service connection for hypertension is denied. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. FINDING OF FACT The Veteran's hypertension was not shown as chronic in service and did not manifest to a compensable degree within one year after service; continuity of symptomatology is not established; and hypertension is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 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 in the United States Army from September 1975 to September 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal of a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a decision dated in November 2019, the Board, in pertinent part, denied service connection for lumbar spine disability and remanded the issue of service connection for hypertension for additional development. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in December 2020, the Court granted Joint Motion for Partial Remand (JMPR), vacated that portion of the November 2019 Board decision which denied service connection for lumbar spine disability and remanded the matter to the Board for further appellate review consistent with the JMPR. See December 2020 JMPR. The RO completed the additional development for the hypertension issue, and it has been returned to the Board for appellate review. 1. Entitlement to service connection for hypertension is denied. The Veteran seeks service connection for hypertension, which he contends is a first began during and is a direct result of his active military service. The Veteran's disability is also one for which presumptions of service connection are available. For the reasons that follow, the Board concludes the presumptions are not met and the Veteran's disability is unrelated to service. I. Presumptive Service Connection Hypertension may be presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Hypertension will be presumed related to service, absent an intercurrent cause, if a) they were shown as chronic in service; or, b) if they manifested to a compensable degree within a presumptive period following separation from service; or, c) if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1110, 1131, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). a. Hypertension Shown as "Chronic" In Service The Board finds first that the Veteran's hypertension was not chronic in service. 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. 38 C.F.R. § 3.303 (b). For VA 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, Note 1. The Veteran's enlistment examination shows blood pressure results of 120/80. See November 1974 Examination. The Veteran's blood pressure was 122/82 in September 1985. See September 1985 Record. Service treatment records show the Veteran's blood pressure was 100/70 in May 1988 and 126/70 in April 1995. See April 1995 Report of Medical Examination. Some of the Veteran's service treatment records are missing. In cases where service records are unavailable, VA has a heightened duty to consider the applicability of the benefit-of-the-doubt rule, to assist the claimant in developing a claim, and to explain its decision when the Veteran's service medical records are not available. See Ussery v. Brown, 8 Vet. App. 64 (1995). Although the Veteran's service treatment records do not indicate treatment for hypertension, the Board remanded this matter in November 2019 to obtain a VA examination due to the Veteran's lay statements regarding a nexus between his current condition and service. The Board also directed the examiner to address June 1994 blood pressure readings showing results of 159/77. See June 1994 Service Record. In December 2019, a VA examination was conducted where the Veteran reported having hypertension for a long time. The Veteran reported that he was treated for high blood pressure in 1991 with medication. This assertion is not consistent with the service records, the service treatment record does not show blood pressure readings consistent with hypertension, diagnosis of hypertension, or medication for high blood pressure in 1991. The Veteran also denied ever having had high blood pressure when completing his report of medical history at his retirement from service physical examination in April 1995. The single reading of 159/77 in June 1994 does not meet the regulatory definition hypertension. The December 2019 medical opinion indicates that reading would not be sufficient to establish hypertension at the time. The only evidence that the Veteran's hypertension was diagnosed as such in service is comprised of his statements. Although the Veteran is competent to report being told that he was diagnosed with hypertension in service, these statements are contradicted by his self-reported medical history at his retirement physical. The retirement physical was much closer in time to the supposed diagnosis and made at a time when the Veteran had no incentive to dissemble. The Board finds the evidence of an in-service diagnosis is not credible. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) ("the Board as fact finder is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc."). In the absence of competent and credible evidence of an in-service diagnosis, the preponderance of evidence is against a showing that the Veteran's hypertension was "chronic" in service. 38 C.F.R. § 3.303(b). b. Manifestations to a Compensable Degree After Separation from Service The Board also finds that the Veteran's hypertension was not manifest to a compensable degree after separation from service. An at least compensable rating for hypertension is warranted for diastolic pressure predominantly 100 or more, systolic pressures predominantly 160 or more, or continuous medication with a history of diastolic pressures predominantly 100 or more. There is no showing in the record that the Veteran had any blood pressure readings of diastolic or systolic pressures of 100 or more. The Veteran was not prescribed medication for his hypertension until July 2003. See Bayne-Jones Army Community Hospital (BJACH) records. The Board concludes that presumptive service connection is not warranted on this basis. c. Continuity of Symptomatology Finally, the evidence of record indicates the Veteran did not have continuity of symptomatology for hypertension since separation from service. The Veteran has not provided lay or medical evidence that his hypertension has been continuously symptomatic since service. See December 2014 VA 21-526 "Veterans Application for Compensation or Pension;" January 2016 Notice of Disagreement; September 2017 VA Form 9. Moreover, the Veteran's post-service treatment records do not support continuity of symptomatology. The Veteran's BJACH records indicate that he was seen in the emergency room on September 4, 2001, with complaints of possible syncopal episode, not feeling well, and left arm numbness. The symptoms were noted to be of sudden onset. Elevated blood pressure readings were noted of 160/103. After treatment, the Veteran was given a five day blood pressure form to complete, which included a short background with the question, were you ever told you had high blood pressure?" to which the Veteran indicated, "yes," and "@ ER." September 13, 2001, BJACH outpatient record. The Board concludes service connection is not warranted on this basis. 38 C.F.R. § 3.303(b). The Board turns to consider direct service connection. II. Direct Service Connection The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The record amply demonstrates that the Veteran has a current disability of hypertension. See, e.g., December 2019 VA examination report. After thoroughly reviewing the Veteran's record, the examiner concluded that the Veteran's diagnosed hypertension was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that because medical records were silent for blood pressure readings in the hypertensive range, he was not taking hypertension medication in service or on separation, and the Veteran was not diagnosed with hypertension until 1998 when he sought treatment at an emergency department for high blood pressure, there is no nexus formed between his military service and his current hypertension condition. The Board finds the December 2019 opinion of the VA examiner is probative because it is based on a review of the Veteran's relevant medical history, and the Board finds the opinion highly probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Although the Veteran contends that his hypertension is related to his service, the Board finds that the question regarding the potential relationship between the Veteran's hypertension and his service to be complex in nature. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the Veteran is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran does not possess the medical knowledge to attribute his hypertension to his military service. Therefore, the Veteran's contention that his hypertension is related to service is not competent and therefore not probative. In light of the foregoing, the Board finds the preponderance of the evidence is against a relationship between the Veteran's current hypertension and service. Accordingly, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The claim must be denied on a direct basis. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability is remanded. The parties to the December 2020 JMPR indicated that the Board failed to ensure compliance with VA's duty to assist by relying on an inadequate medical opinion to deny the Veteran's service connection claim. With regard to the VA examination, the parties to the JMPR found the September 2015 examination upon which the Board relied was inadequate as the VA examiner failed to consider the Veteran's reports of a continuity of symptoms since service for his claimed disabilities. The December 2020 JMPR specifically noted the Veteran's report of recurrent back pain on his separation examination, statements from the Veteran regarding incurrence of back pain on active duty and continuing symptoms, and that he self-medicated in service and thereafter. As such, a new examination and opinion should be obtained. The matter is REMANDED for the following action: 1. Obtain outstanding VA medical records. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed lumbar spine disability. Access to the Veteran's claims folder must be provided to the examiner for review in connection with the examination. After reviewing the record and examining the Veteran, the examiner should provide an opinion, with supporting rationale, as to whether it is at least as likely as not (50 percent or greater probability) that any current lumbar spine disability was incurred during the Veteran's period of active duty, whether arthritis of the lumbar spine was manifest to a compensable degree within one year of separation, or whether any current lumbar spine disability is otherwise causally related to an in-service disease or injury. Given the Veteran's service records are incomplete, the examiner should note the Veteran's reports of lumbar spine pain from September 25, 1987 to his April 4, 1995 Report of Medical History. In providing the rationale for their conclusions, the examiner should consider the relevant evidence of record, to include the Veteran's description of the history of his symptomatology, the Veteran's report of recurrent back pain on his separation examination, statements from the Veteran regarding incurrence of back pain on active duty and continuing symptoms, and that he self-medicated in service and thereafter. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Trickey 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.