Citation Nr: 22010992 Decision Date: 02/25/22 Archive Date: 02/25/22 DOCKET NO. 15-33 124 DATE: February 25, 2022 ORDER Service connection for hypertension is denied. FINDING OF FACT The Veteran's hypertension is not attributable to incident or event of his period of service and was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria to establish service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1979 to May 2003. Effective March 2018, the Veteran has a total disability rating based on individual unemployability ("TDIU"). This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a hearing at the RO in June 2018. A transcript of the hearing is of record. In August 2020, the Board remanded the claim for further development of the record. Specifically, the Board instructed the RO to schedule the Veteran for VA examination to determine the cause of his claimed hypertension (as previously directed in the April 2019 Board remand). The Veteran received a responsive examination in August 2021. The requested development has been completed and the case has been returned for appellate disposition. The appeal originally included the issues of entitlement to service connection for a bilateral knee disability, a lumbar spine disability, a bilateral foot disability, and gastroesophageal reflux disease (GERD). In a September 2021 rating decision, the RO granted service connection for left knee osteoarthritis, right knee osteoarthritis, pes planus with plantar fasciitis and bone spurs, lumbar strain with degenerative disc disease and facet hypertrophy, and GERD. These claims have been resolved and are no longer on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning the compensation level assigned for the disability). The Veteran filed claims of service connection for bilateral carpal tunnel syndrome and right arm and bilateral knee scars in November 2007. Those claims were denied in a September 2010 rating decision and the Veteran was notified of the rating decision in October 2010. On January 19, 2013, the RO received the Veteran's Notice of Disagreement (NOD) disagreeing, in pertinent part, with the denied claims for service connection for bilateral carpal tunnel syndrome and right arm and bilateral knee scars. The NOD was purportedly signed by the Veteran on July 19, 2011. In February 2013, the Veteran contacted the RO to check on the status of his NOD and stated that his representative had faxed the NOD into the RO in October 2011. The RO reviewed the Veteran's claims file and determined that no NOD was received. The Veteran was advised to contact his representative and locate a copy of the form/fax that was sent that showed the VA received his NOD within the appeals period (i.e., within a year of October 2010). To date, the Veteran has not submitted evidence showing the NOD pertaining to the denied claims for service connection for bilateral carpal tunnel syndrome and right arm and bilateral knee scars was received within a year of the October 2010 notification of the rating decision. Similarly, the Veteran filed claims of service connection for a thyroid disorder and lip scar in March 2011. Those claims were denied in the January 2013 rating decision and the Veteran was notified of the rating decision in February 2013. In his NOD received in February 2014, the Veteran explicitly failed to disagree with the January 2013 rating decision as it pertained to the denied claims for service connection for a thyroid disorder and lip scar; rather, he specifically disagreed with the January 2013 rating decision as it pertained to the claims for an increased rating for erectile dysfunction, service for posttraumatic stress disorder (PTSD), increased rating for bilateral hearing loss, service connection for a bilateral knee disability, service connection for sleep apnea, service connection for hypertension, service connection for pseudofolliculitis, service connection for a lumbar spine disability, service connection for a bilateral foot disability, and service connection for alcohol dependence. The Board is aware that the previous April 2019 and August 2020 Board remands inadvertently listed these issues on appeal; however, to do so was premature. Accordingly, the claims for service connection for bilateral carpal tunnel syndrome, right arm and bilateral knee scars, a thyroid disorder and lip scar are not currently before the Board on appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.301, 20.302 (2017). 1. Entitlement to service connection for hypertension Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including hypertension, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted, hypertension is a chronic disease. 38 U.S.C. § 1101. Therefore, section 3.303(b) is potentially applicable. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b); see also Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The April 1979 enlistment examination documents that the Veteran's blood pressure reading was 120/70. A May 2001 service treatment record documents that the Veteran's blood pressure reading was 106/71. After service, an April 2007 treatment record reflects the Veteran's blood pressure reading was 144/84. On physical examination, the assessment was isolated elevated blood pressure. The Veteran was advised to complete a 7-day blood pressure check at home and return for treatment if his blood pressure readings were 140/90 on 2 or more readings. A May 2010 VA examination report reflects the Veteran's blood pressure readings in his right arm were 162/104 and 159/106 and the reading in his left arm was 160/104. The physician concluded that the Veteran had undiagnosed hypertension. The August 2012 VA hypertension examination report confirms the diagnosis of hypertension. The Veteran reported that his hypertension onset during service in approximately 1996-1997. He stated that he received treatment at the base hospital and was diagnosed with high blood pressure. He continued to seek medical care but discontinued taking his blood pressure medication because of side effects such as erectile dysfunction. Documented blood pressure readings were 140/92, 138/98, and 141/91. In November 2016, the Veteran's blood pressure readings were 149/97, 157/103, and 147/100. The August 2021 VA hypertension examination report confirms the diagnosis of hypertension. The Veteran alleged that his hypertension began during the 1990s. He seemed to suggest his hypertension was related to his depression and anxiety and reported associated symptoms including headaches and vertigo. He was prescribed medication for treatment of his hypertension and he monitored his sodium and salty foods intake. The examiner opined that the Veteran's hypertension was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that there was limited evidence during his period of service indicating hypertension. The examiner stated there was very little evidence or documentation of the Veteran's hypertension until well after he was discharged from service, indicating the Veteran's hypertension was not a result of injury during service. In addition, the examiner opined that it was less likely than not that the Veteran's hypertension was caused or aggravated by his service-connected psychiatric disorder. The examiner explained that given the timeline of onset of symptoms the Veteran's hypertension did not onset due to his psychiatric disorder. The examiner also determined that the baseline of the Veteran's hypertension was Stage 1 and there was no aggravation of his hypertension by the service-connected psychiatric disorder beyond the baseline. The examiner documented review of the Veteran's blood pressure readings and explained that research indicated that the most common causes of hypertension included being overweight or obese, too much salt intake, stress, older age, genetics, and lack of physical activity. The examiner noted per elevated BMI findings, the Veteran was considered obese and had been educated on multiple occasions on his salt intake. In addition, the Veteran was physically inactive. The examiner concluded that the Veteran's hypertension was less likely than not incurred in or caused by service injury, event or illness or caused or aggravated by the service-connected psychiatric disorder. Though the Veteran has hypertension, the evidence is against a finding of a linkage between the onset of the hypertension and his military service. The Board has considered his contentions as to the cause of the disorder, but the Veteran is not medically trained. Rather, the competent evidence shows that the Veteran had several significant risk factors for development of hypertension, including being overweight or obese, too much salt intake, stress, older age, genetics and lack of physical activity and his hypertension onset many years after his discharge from service and was unrelated to any service event, injury, or illness. There is no evidence to support the assertion that the Veteran's hypertension was proximately due to or a result of his service-connected depressive disorder with alcohol dependence (See August 2021 VA examination report). There has been no evidence submitted indicating hypertension had onset due to event or incident incurred in service or secondary to a service-connected disability. These conclusions are probative as they are based on facts presented by both the service treatment records and the assertions made by the Veteran at the time of the VA examinations. There is also no competent or credible evidence or opinion that suggests that there exists a medical relationship, or nexus, between any current hypertension and a period of the Veteran's service or a service-connected disability. Additionally, there is no evidence of hypertension in service. To determine that a chronic disease was shown in service, the disease identity must be established. 38 C.F.R. § 3.303 (b); Walker, 708 F.3d at 1339. No examiner in service, or since, has established chronicity or an underlying chronic disease process in service. In sum, characteristic manifestations sufficient to identify the disease (hypertension) entity were not noted. Further, there is no demonstration of continuity of symptomatology or evidence of hypertension within one year of separation from service. Thus, service connection cannot be awarded on a presumptive basis. 38 U.S.C. § 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. § 3.303 (b), 3.307, 3.309. The Veteran is not competent to link his hypertension to a period of service. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service-connected mental disorder and drowning which caused Veteran's death). The Veteran is a lay person and is not competent to establish that his current hypertension onset because of an event or incident during a period of service or offer an opinion as to etiology of any current hypertension. The question regarding the etiology of such a disability is a complex medical issue that cannot be addressed by a layperson. For these reasons, his allegations are no more than conjecture and do not rise to the type of evidence addressed by Jandreau. The claim of entitlement to service connection hypertension must be denied. The evidence is not in approximate balance between that favoring the claim and against the claim. There is no reasonable doubt, and the claim is denied. Lynch v. McDonough, 999 F.3rd 1391 (2021). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Jackson The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.