Citation Nr: 22014759 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 16-60 152 DATE: March 15, 2022 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for a heart disorder as secondary to hypertension is denied. FINDINGS OF FACT 1. The Veteran's hypertension was noted on entry into active service and were not aggravated beyond the normal progress of the disorder during military service. 2. As service connection for hypertension has not been granted, there is no legal basis for an award of service connection for a heart disorder as secondary to hypertension. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. 2. The criteria for service connection for heart disorder as secondary to hypertension have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1994 to January 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The matter was last remanded in October 2019 for further development and has since returned to the Board for further appellate action. The previous remand ordered the RO to develop the following: obtain and associate with the claims file, private treatment records from 2014 to the present from a private facility and outstanding VA and private treatment records as well as an addendum VA opinion with regards to the nature and etiology of the Veteran's claimed hypertension and heart disorder claims. In February 2020, the RO obtained and associated with the claims file several medical treatment records including the private records from the private facility and updated VA treatment records have been associated with the record. Then, the RO obtained an addendum VA opinion regarding nature and etiology in July 2020. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection 1. Entitlement to service connection for hypertension is denied. 2. Entitlement to service connection for heart disorder as secondary to hypertension is denied. The Veteran asserts that he suffers from hypertension is due to service or otherwise due to preexisting hypertension being aggravated beyond natural progression by service. He also assert that his heart disorder is caused or aggravated by his hypertension. See September 2015 Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ); June 2016 Notice of Disagreement; and December 2016 Substantive Appeal. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the alternative, secondary service connection may be established for a disability that is proximately due to, or the result of, or aggravated by a service-connected disease or injury. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) that the current disability was either (a) caused or (b) aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are considered as "noted." 38 C.F.R. § 3.304(b). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). VA's General Counsel has held that 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 Board notes that the Court of Appeals for Veterans Claims (Court) has held that the presumption of aggravation under 38 U.S.C. § 1153 only applies in cases where a preexisting disability was noted at the service entrance examination. See Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). Otherwise, the matter goes to the analysis of the presumption of soundness. The veteran 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. VAOPGCPREC 3-2003; see Horn, 25 Vet. App. at 234-35 (holding that the burden of proof in presumption of soundness cases rests with VA); see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Generally, as a matter of law, the presumption of soundness may be rebutted by clear and unmistakable evidence consisting of a veteran's own admissions during clinical evaluations of a pre-service history of symptoms. Thus, in the absence of any contention that the appellant never made the statements attributed to him (reporting pre-existing symptoms), those statements alone may rebut the preexistence prong of the presumption of soundness. Horn v. Shinseki, 25 Vet. App. 231, 237-38 (2012) (citing Doran v. Brown, 6 Vet. App. 283, 286 (1994)). Likewise, a later medical opinion based on statements made by the veteran about the pre-service history of his condition may be sufficient to rebut the preexistence prong of the presumption of soundness, notwithstanding the lack of contemporaneous clinical evidence or recorded history. Harris v. West, 203 F.3d 1347, 1349 (Fed. Cir. 2000); Horn, 25 Vet. App. at 237-38. The Court has held that lay statements by a veteran concerning a preexisting condition are not sufficient to rebut the presumption of soundness. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (stating that a lay person's account of what a physician may or may not have diagnosed is insufficient to support a conclusion that a disability preexisted service); Crowe, 7 Vet. App. at 246 (1994) (finding that supporting medical evidence is needed to establish the presence of a preexisting condition). A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Jenson v. Brown, 4 Vet. App. 304, 306-307 (1993) (citing Hunt v. Derwinski, 1 Vet. App. 292 (1991)). However, if an increase in disability is shown, clear and unmistakable evidence is required to rebut the presumption of aggravation. 38 C.F.R. § 3.306(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service treatment records confirm high blood pressure. Specifically, during the December 1993 enlistment examination, the Veteran was noted as having high blood pressure and was tested at three different times during the day, showing 176/100 at 6 AM, 160/98 at 8:30 AM, and 138/100 at 10:00 AM. The Veteran was however, deemed qualified for entry. Throughout service, the Veteran's blood pressure was noted. In the July 1997 discharge examination, the examiner noted slightly elevated blood pressure and planned to monitor the Veteran's blood pressure for three days and perform random blood pressure for two weeks. There is no corresponding Report of Medical History. With regards to the heart specifically, service treatment records are negative for any heart concerns with regards to the heart, including at separation. Here, the Board finds that the evidence shows that the Veteran's high blood pressure preexisted his active service as evidenced by the December 1993 entrance examination. Thus, there is clear and unmistakable evidence that the Veteran was not sound upon entry of service and as such, the presumption of soundness does not apply. The Veteran's hypertension therefore preexisted service and the evidence must show that there was an increase in the disability during service to trigger the presumption of aggravation. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. With regards to aggravation of the preexisting hypertension, the burden is on the Veteran to establish an increase in severity in service. Wagner v. Principi, supra. If the Veteran is able to demonstrate an increase in severity in service, then the presumption of aggravation attaches and the burden shifts to the VA to rebut the presumption by clear and unmistakable evidence that the worsening of pre-existing condition was due to its natural progression. Id.; see also Horn v. Shinseki, 25 Vet. App. 231, 235, 238-39 (2012). In November 2015, a VA opinion was obtained without an in-person examination or telephone review of the Veteran, as the RO deemed that all necessary information was available to render an opinion. The VA examiner opined that it is less likely as not that the Veteran's hypertension, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression by or during service. In support of this opinion, the examiner explained that there is no basis in medical fact identified in support of the claim and that aggravation in service was not show in the record. The Board provides this opinion with low probative weight, as the examiner did not explain the Veteran's high blood pressure at entry, during service, or why the Veteran's hypertension was not aggravated beyond its natural progression. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In addition, the Board notes that this opinion was found to be inadequate in its October 2019 remand. A July 2020 VA examiner opined that the Veteran's hypertension clearly and unmistakably preexisted service, as shown by multi-day multiple blood pressure determinations prior to active duty meet American Heart Association/American College of Cardiology criteria for diagnosis of Stage II hypertension. The examiner then opined that the preexisting hypertension clearly and unmistakably was not aggravated by service. In support of this conclusion, the examiner explained that the average blood pressure determined from multiday multiple blood pressure determinations (nine determinations total) prior to active duty was 146/82 and that the average blood pressure determined from nine available blood pressure determinations closest to termination of active duty was 134/88. The examiner specifically listed that the Veteran's blood pressure readings were prior to service, during service and after service from 1999 to 2012. Blood pressure readings prior to service in December 1993 were noted to be: 140/70, 158/84, 150/86, 130/68, 132/68, 130/64, 176/100, 160/98, and 138/100. Blood pressure readings during service were noted to be: 132/60, 136/64, 163/96, 140/95, 140/90, 150/92, 158/98, 135/80, 138/80, 124/90, 132/102, 128/78, 144/92, 132/92, 134/88 and 142/90. Blood pressure readings following service were noted to be: 138/92, 150/100, 160/100, 140/100, 150/82, 150/100, 140/98, 136/94, 142/92, 148/112, 138/84, 148/96, 156/110, 150/80, 140/80, 152/100, 180/120, 168/102 and 200/113. Therefore, the examiner explained that the totality of all blood pressure determinations identified prior to and during service do not support the claim that the Veteran's preexisting high blood pressure were aggravated by the Veteran's service. Based on the evidence of record, the Board finds that the Veteran's preexisting hypertension was not aggravated during service as there is no evidence of worsening or an increase in severity. Specifically, during both entrance and exit examination, the Veteran was monitored due to high blood pressure, and the data as analyzed by the July 2020 VA examiner shows that the Veteran's blood pressure was not significantly worse at separation than during entry. The Board further finds the July 2020 VA opinion to be probative since the VA examiner reviewed the Veteran's claims file and medical history and provided a rationale for the opinion. The Board finds that the opinion is based upon sufficient facts and data and this opinion is probative. See Nieves-Rodriguez v. Peake, supra. The VA examiner, as a medical professional, has the skill and expertise to render this medical opinion and provide an assessment as to whether the hypertension was aggravated in active service beyond the natural progression of the disease. In evaluating the probative value of medical statements, the Board examines factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). There is no contrary probative opinion of record. The Veteran has argued that he suffers from a heart disorder that is secondary to hypertension. As service connection for hypertension is being denied herein, there simply is no legal basis to award service connection for a heart disorder on a secondary basis. 38 C.F.R. § 3.310. See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board notes that the Veteran is claiming that his hypertension is the result of service or was aggravated by service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's hypertension and any instance of his service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Specifically, while the Veteran is competent to describe his current hypertension symptoms, however, the Board accords his statements regarding the etiology of such a disorder little probative value as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship and requires the administration and interpretation of diagnostic testing. In the instant case, there is no suggestion that the Veteran has any medical training. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the opinion of the Veteran is nonprobative evidence. As discussed, to the extent that the Veteran contends that hypertension was caused by or aggravated beyond natural progression during his active service, the Board finds that contemporaneous medical evidence showing similar blood pressure average at separation to be similar to that of blood pressure average found at entry to be of greater probative value. The Board notes the Veteran's representative's argument in the March 2022 Informal Hearing, in which the representative argued that the presumption of aggravation applies to the Veteran's preexisting hypertension and that VA has not overcome this presumption. The representative also argued that the rigors and stress factors of military service cannot be ignored as an aggravating factor with regards to the Veteran's hypertension. However, the July 2020 VA examinerwho the Veteran's representative has conceded is well-qualified to provide an opinionfound that there was clear and unmistakable evidence that the hypertension was not aggravated by service as the average blood pressure readings prior to active duty service was 146/82 and that the average blood pressure determinations closest to termination of active duty was 134/88. In other words, the examiner found that the Veteran's blood pressure readings actually improved during service and that there hence was no aggravation during service. Although the Veteran's representative argues that the rigors and stress factors of service could be an aggravating factor for the Veteran's hypertension, they have cited to no evidence that the hypertension was actually aggravated during service nor have they cited to evidence contrary to the VA examiner's finding that the Veteran's hypertension improved during service. Moreover, the VA examiner's opinion was provided to the correct legal standard regarding aggravation of a pre-existing condition. This argument is therefore without merit. In sum, the weight of the evidence demonstrates that the currently diagnosed hypertension preexisted prior to service and was clearly and unmistakably not aggravated by service. As service connection for hypertension is not being granted, service connection for a heart disorder as secondary to hypertension cannot be awarded as a matter of law. Accordingly, for the foregoing reasons, the Board finds that the evidence is persuasively against the claims of service connection for hypertension and heart disorder, and the claims must be denied. Because the evidence is persuasively against the claims, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.J. Kim, 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.