Citation Nr: 21039752 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 12-33 972 DATE: July 1, 2021 ORDER Entitlement to service connection for hypertension is granted. REMANDED Entitlement to service connection for coronary artery disease (CAD), including as secondary to service-connected hypertension, is remanded. Entitlement to a disability rating in excess of 10 percent prior to October 27, 2014, and in excess of 20 percent thereafter for service-connected traumatic dislocation of big toe, second toe, and third toe of the left foot with arthritis and a ganglion cyst is remanded. FINDING OF FACT The Veteran's hypertension had its onset during active service. CONCLUSION OF LAW The criteria for service connection for hypertension have been satisfied. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1963 to August 1967. He also had a period of active duty for training (ACDUTRA) from August 8, 1981 to August 22, 1981. Service connection for traumatic dislocation of big toe, second toe, and third toe of the left foot with arthritis and a ganglion cyst has been awarded based on that training period, and therefore veteran status is established. See Rating Decision Codesheet, dated November 22, 1999; see also 38 U.S.C. § 101(2) and 101(24); 38 C.F.R. §§ 3.1(d); 3.6(a); Mercado- Martinez v. West, 11 Vet. App. 415, 419 (1998). This matter comes before the Board of Veterans' Appeals (Board) from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing with the undersigned in March 2017. A transcript of that hearing has been added to the Veteran's file. This issue was previously remanded by the Board in September 2017 and has since been returned for further adjudication. 1. Entitlement to service connection for hypertension is granted. Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link between the current disability and the disease or injury incurred or aggravated in service (the "nexus" element). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including cardiovascular-renal disease (including hypertension), service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015). For conditions noted during service (or in the presumptive period) but not shown to be chronic at the time, a continuity of symptomatology after service is required to support the claim. 38 C.F.R. § 3.303(b). When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service ("intercurrent" causes). Id. 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), (24); 38 C.F.R. § 3.6(a), (d); Biggins v. Derwinski, 1 Vet. App. 474 (1991). Certain evidentiary presumptions, such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence or aggravation for certain diseases (including hypertension) which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.304(b), 3.306, 3.307, 3.309. Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ACDUTRA and INACDUTRA unless those periods are also active service periods. See Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995); see also Smith v. Shinseki, 24 Vet. App. 40 (2010) (presumption of soundness and presumption of aggravation not applicable to ACDUTRA). Also, some presumptions will not apply to certain periods of ACDUTRA and INACDUTRA. Smith, 24 Vet. App. at 45-46. If the claimant did not serve for any period of time on active duty, he or she must establish service connection for a disability on a direct basis first in order to achieve "veteran" status and be entitled to compensation. Paulson, 7 Vet. App. at 470; Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (holding that a presumption of service connection is inapplicable without previously established veteran status). The Court held in Hill that "once a claimant has achieved veteran status for a single disability incurred or aggravated during a period of ACDUTRA, veteran status applies to all disabilities claimed to have been incurred or aggravated during that period of ACDUTRA." Hill v. McDonald, 28 Vet. App. 243 (2016). The Court distinguished Hill from prior cases in which it had held that the presumption of aggravation was not applicable to a claim based on a period of ACDUTRA. In this regard, the Court noted that the veterans in those cases sought benefits only for a single disability based on the specified period of ACDUTRA, in contrast to the claimant's claims for multiple disabilities incurred during one period of ACDUTRA, and where service connection had already been granted for one disability incurred during the ACDUTRA period at issue. See, e.g., Smith, 24 Vet. App. 40; Donnellan v. Shinseki, 24 Vet. App. 167 (2010). Thus, due to the award of service connection for the Veteran's left foot disability, his period of service from August 8, 1981 to August 22, 1981, is now considered to be active service. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). The Veteran asserts that he has hypertension that is related to his active military service or related to the stress of military training and the high sodium diet he was on during his inactive duty National Guard service. The Veteran has reported that he was treated for his left foot injury at the base clinic at Fort Edwards in August 1981, and then at the VA hospital in West Roxbury. He stated that he was diagnosed as having hypertension at the VA hospital and had been treated with medication since that time. See VA Form 21-4138, dated November 9, 2009. The Veteran's records show that during his period of service from August 8, 1981 to August 22, 1981, he was treated for traumatic dislocation of big toe, second toe, and third toe of the left foot on August 18, 1981. Thereafter, he sought treatment at the West Roxbury VA treatment facility on September 17, 1981. At that time, he stated that he had been diagnosed as having hypertension four years ago, but was not placed on medication for hypertension until two weeks earlier when he had elevated readings in the emergency room. It was noted that he was taking Dyazide for hypertension. He was diagnosed as having hypertension, and it was noted that he needed better control of his hypertension. Here, it does not appear that the Veteran was provided an entrance examination prior to his active service from August 8, 1981 to August 22, 1981. Thus, the presumption of soundness does not apply. See 38 U.S.C. § 1111. The Veteran gave a history of hypertension since approximately 1977; however, there is no medical evidence reflecting a diagnosis of hypertension until September 1981. Further, in September 1981, the Veteran reported that he was not placed on medication for hypertension until approximately two weeks earlier. Thus, resolving the benefit of the doubt in the Veteran's favor, the Board finds that his hypertension did not pre-exist his period of active service beginning on August 8, 1981. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The initial diagnosis of hypertension was on September 17, 1981, approximately three weeks after the Veteran was separated from service. Because his period of service from August 8, 1981 to August 22, 1981, was less than 90 days, the presumption of service connection for hypertension does not apply. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Regardless, on September 17, 1981, the Veteran stated that he was placed on medication for hypertension two weeks earlier when he was seen in the emergency room. It appears that the Veteran was referencing the emergent treatment he received for his left foot injury in August 1981, during active service. The Veteran's statement made during the course of seeking treatment for his hypertension in September 1981 is found to be credible. Further, he is competent to report when he began taking medication for hypertension, and the September 1981 treatment note reflects that he was taking Dyazide for his hypertension. Thus, resolving the benefit of the doubt in the Veteran's favor, the Board finds that his hypertension was diagnosed during his active service in August 1981. Because the Veteran has a current diagnosis of hypertension and was diagnosed as having hypertension during service, service connection for hypertension is warranted. See 38 C.F.R. §§ 3.303(b), 3.309(a). REASONS FOR REMAND 1. Entitlement to service connection for coronary artery disease, including as secondary to service-connected hypertension, is remanded. The Veteran has now been awarded service connection for hypertension. He asserts that he developed coronary artery disease as a result of his hypertension. See VA Form 21-4138, dated November 9, 2009. Accordingly, on remand a medical opinion should be obtained as to whether his CAD was caused or aggravated by his hypertension. See 38 C.F.R. § 3.310. 2. Entitlement to a disability rating in excess of 10 percent prior to October 27, 2014, and in excess of 20 percent thereafter for service-connected traumatic dislocation of big toe, second toe, and third toe of the left foot with arthritis and a ganglion cyst is remanded. In September 2017, the Board remanded the Veteran's claim for an increased rating for this left foot disability and requested a medical opinion as to whether he has any arthritis, ganglion cyst(s), and/or plantar fasciitis that are residuals and/or manifestations of his service-connected traumatic dislocation of big toe, second toe, and third toe, left foot. In April 2020, a VA examiner stated that there was no plantar fasciitis as per the evidence of record, but that the left foot ganglion cyst and left foot arthritis represented progression of the service-connected disability. Thus, the Veteran's service-connected left foot disability was recharacterized to include the left foot ganglion cyst and arthritis, as noted above. However, a review of the Veteran's VA treatment records now reflects additional diagnoses concerning his left foot, including hallux rigidus in January 2017; functional hallux limitus, hammertoes, and a left Tailor's bunion in July 2019; metatarsalgia in June 2020; and, more recently, plantar fasciitis in February 2021 and March 2021. See VA Primary Care progress Note, dated October 16, 2009; VA Physical Medicine Rehab Consult, dated January 26, 2017; VA Podiatry Consult, dated July 29, 2019; VA Podiatry Operative Notes, dated June 25, 2020, and October 9, 2020; VA Primary Care Case Manager Note, dated February 24, 2021; and VA Podiatry Operative Note, dated March 4, 2021. As such, an additional remand is required to determine whether any of these conditions are residuals and/or manifestations of his service-connected left foot disability. The matter is REMANDED for the following action: 1. Obtain the Veteran's updated VA treatment records. Obtain an addendum medical opinion from an appropriate examiner regarding the etiology of the Veteran's coronary artery disease. The claims file, to include a copy of this remand, should be made available to the examiner for review in conjunction with the examination, and the examiner should note such review. The examiner must provide an opinion as to whether the Veteran's coronary artery disease is/was at least as likely as not (50 percent probability or greater) (a) caused by, or (b) aggravated by, i.e., worsened beyond its natural progression by, his service-connected hypertension. NOTE: The examiner is advised that a "permanent worsening" is not required to establish aggravation. Aggravation may include temporary worsening, or flare-ups, of a disability. The complete rationale for all opinions expressed must be set forth by the examiner. 3. Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected left foot disability. The claims file, to include a copy of this remand, should be made available to the examiner for review in conjunction with the examination, and the examiner should note such review. The examiner should conduct all appropriate tests, including x-rays if indicated. (a) The examiner should identify all residuals and manifestations of the Veteran's service-connected traumatic dislocation of big toe, second toe, and third toe of the left foot with arthritis and a ganglion cyst. (b) A specific determination should be made as to whether the Veteran has now, or has had at any time since November 2008, the following: hallux rigidus, functional hallux limitus, hammertoes, a left Tailor's bunion, metatarsalgia, and/or plantar fasciitis. In providing this opinion, the examiner should consider the Veteran's VA treatment records showing diagnoses of the above conditions. See VA Primary Care progress Note, dated October 16, 2009; VA Physical Medicine Rehab Consult, dated January 26, 2017; VA Podiatry Consult, dated July 29, 2019; VA Podiatry Operative Notes, dated June 25, 2020, and October 9, 2020; VA Primary Care Case Manager Note, dated February 24, 2021; and VA Podiatry Operative Note, dated March 4, 2021. If the examiner disagrees with any of the left foot diagnoses on the Veteran's VA treatment records, he/she should explain why. (c) For each of the above left foot diagnoses, the examiner should provide an opinion as to whether it is a residual and/or manifestation of the Veteran's service-connected traumatic dislocation of big toe, second toe, and third toe of the left foot with arthritis and a ganglion cyst. (d) In the examination report, the examiner must include all of the following: active range of motion testing results, passive range of motion testing results, weightbearing range of motion testing results, and non-weightbearing range of motion testing results. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (e) The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran's own statements, is not sufficient to make such an estimate. (f) The examiner should specifically identify the symptoms which result from the Veteran's service-connected left foot disabilities, as opposed to any nonservice-connected left foot disabilities. If the examiner is unable to disassociate nonservice-connected foot symptoms from the symptoms of the service-connected left foot disability, the examiner should so state. The complete rationale for all opinions expressed must be set forth by the examiner. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hofmeister, Megan 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.