Citation Nr: 21040766 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-61 398 DATE: July 6, 2021 REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a respiratory disability claimed as asthma is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1969 to August 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled to appear at a virtual Board hearing on April 12, 2021, however his representative submitted a statement on April 9, 2021 indicating that the Veteran was withdrawing his request for a hearing. As such, the Board deems the Veteran's request for a hearing withdrawn. 38 C.F.R. § 20.704 (e). 1. Entitlement to service connection for hypertension is remanded. The Veteran seeks service connection for hypertension. VA treatment records document a diagnosis of benign essential hypertension which requires daily medication. The Veteran's April 1969 induction examination noted that the Veteran had high blood pressure with scarlet fever prior to entering the Air Force. In a case such as this where a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder but may bring a claim for service-connected aggravation of that disorder." See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see also 38 U.S.C. § 1153; 38 C.F.R. § 3.306. To be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304 (b); see also 38 U.S.C. § 1132; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). The Veteran was afforded an in - person VA Examination for Hypertension in September 2013. The VA examiner opined that the Veteran's "hypertension was not from or aggravated by the service; the Veteran has essential hypertension." The Board finds that the September 2013 VA medical opinion is inadequate for adjudication purposes. Specifically, the Board notes that the examiner used the wrong legal standard in formulating their opinion and did not offer an adequate rationale for their conclusion. Accordingly, the Board finds that remand for further development to include a new VA examination is warranted. 2. Entitlement to service connection for a respiratory disability claimed as asthma is remanded. The Veteran seeks service connection for asthma which he contends began during active duty. While he initially contended that he had childhood asthma, in a March 2021 written statement the Veteran recanted that assertion indicating that he had scarlet fever and not asthma. The Veteran's VA treatment records indicated that in August 2017 the Veteran had an asthma attack that required hospitalization. However, the records for that hospitalization are not associated with the Veteran's claims file. VA treatment records also indicated that the Veteran has an additional respiratory disorder diagnosed as chronic obstructive pulmonary disease (COPD). Accordingly, the Board has recharacterized the Veteran's claim as one of service connection for a respiratory disability, claimed as asthma. See Clemmons v. West, 206 F.3d 1401 (Fed. Cir. 2000). The Veteran's service treatment records (STRs) are silent for any documentation of childhood asthma but indicated that the Veteran received treatment for bronchitis, a lung infection in December 1972. The Veteran was afforded an in-person VA Respiratory Conditions examination in September 2013. The examiner noted that the Veteran had childhood asthma which resolved but resurfaced in 2007. The examiner indicated that the Veteran's asthma disability was not from or aggravated by service. The Board finds the September 2013 VA medical opinion to be inadequate for rating purposes. Specifically, the examiner used the wrong legal standard in determining that there was no medical nexus. Further, the examiner failed to offer a rationale for their conclusion. Finally, the examiner did not address the in service lung infection and diagnosis of bronchitis. In light of the foregoing, the Board finds that remand for additional development to include a new VA examination is warranted. The Board notes that the Veteran submitted a private medical opinion dated December 2016 from his private treating physician. The private physician opined that it is "certainly possible that the Veteran's chronic asthma and hypertension arose as a result of service". The Board notes that the appropriate legal standard of at least as likely as not (50 percent probability) was not applied by the private examiner. Furthermore, the private examiner did not offer a rationale or explanation for his conclusion that the Veteran's hypertensive and respiratory disabilities are related to his active duty service. The matters are REMANDED for the following action: 1. With any required assistance from the Veteran update the claims file with any outstanding VA and private treatment records relevant to the claims on appeal to specifically include the August 2017 record of inpatient hospitalization due to asthma. 2. After the above development is complete schedule the Veteran for an in-person VA examination by an appropriate clinician to determine the nature and etiology of his hypertension. The Veteran's claims file, including a copy of this remand, should be made available for review by the examiner. The examiner is asked to obtain a complete history from the Veteran, to review his claims file (to include this remand) and note that review in their report. The examiner is asked to offer opinions to the following: (a.) Does the evidence of record clearly and unmistakably (un-debatably) demonstrate that the Veteran had hypertension prior to his active duty service? In responding the examiner is asked to specifically address the Veteran's April 1969 induction examination which noted high blood pressure during childhood due to scarlet fever. (b.) If the answer to the above question is "yes," does the evidence clearly and unmistakably (un-debatably) demonstrate that the Veteran's hypertension was not aggravated by active duty service? In answering this question, the examiner should know that a lack of aggravation may be shown by establishing either that there was no increase in the Veteran's disability during service or that any increase in disability was due to the natural progression of the preexisting condition. (c.) If the answer to question a is "no," is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension began during or was otherwise caused by the Veteran's active duty? Why or why not? 3. Schedule the Veteran for an in-person examination by an appropriate clinician to determine the nature and etiology of any respiratory disability. The Veteran's claims file, including a copy of this remand, should be made available for review by the examiner. The examiner is asked to obtain a complete history from the Veteran, to review his claims file (to include this remand) and note that review in their report. The examiner should then respond to the following: (a.) Identify all respiratory conditions diagnosed during the period on appeal. (b.) For each respiratory condition identified is it at least as likely as not (50 percent or greater probability) that it began during or was otherwise caused by the Veteran's active duty? Why or why not? Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Alexander 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.