Citation Nr: 22016990 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 13-18 460 DATE: March 23, 2022 ORDER Service connection for hypertension on a direct or presumptive basis is denied. FINDINGS OF FACT 1. The Veteran's hypertension was not noted in active service or within a year of separation, and is not linked to disease or injury incurred or aggravated in active service. 2. The Veteran's hypertension is not shown to be a manifestation of an undiagnosed illness or medically unexplained chronic multisymptom illness. CONCLUSION OF LAW The criteria for service connection for hypertension on a direct or presumptive basis have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably on active duty in the U.S. Army from November 1988 to June 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the matter in September 2017, November 2018, August 2020, February 2021, and July 2021. In a November 2021 decision, the Board bifurcated the claim for hypertension into two issues: service connection on a secondary basis and service connection on a direct or presumptive basis. See Tyrues v. Shinseki, 23 Vet. App. 166, 176 (2009) (en banc), aff'd 631 F.3d 1380 (Fed. Cir. 2011). It denied service connection on a secondary basis, and remanded the issue of service connection on a direct or presumptive basis for further development. Accordingly, this decision will only address the latter issue. The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2017. A transcript of the hearing is of record. Service Connection 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 hypertension as a form of cardiovascular-renal disease, 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). 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. In addition, where a veteran served continuously for 90 days or more during a period of war, or after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including cardiovascular-renal disease such as hypertension, if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. § § 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). 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. If the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise), the claimant receives the benefit of the doubt. Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 at *10 (Fed. Cir. Dec. 7, 2021). If the evidence persuasively favors one side or the other, there is not an approximate balance, and therefore the benefit-of-the-rule does not apply. Id. at *11. (Continued on following page) Hypertension The Veteran's principal theory of service connection for hypertension has been that certain service-connected disabilities caused or aggravated her hypertension. As noted, the Board denied service connection for hypertension on a secondary basis in its November 2021 decision. Regarding direct service connection, she has also stated that she was diagnosed with hypertension in service. See April 2010 VA Form 21-4138. For the following reasons, the Board finds that service connection for hypertension on a direct or presumptive basis is not established. VA regulation defines hypertension as diastolic blood pressure predominantly 90 mm. or greater; isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. The service treatment records do not show findings or diagnoses of hypertension or high blood pressure. They generally reflect blood pressure readings showing diastolic blood pressure below 90 mm. and systolic blood pressure below 160 mm. A November 1994 entry reflects that the Veteran complained of a recent onset of pain and swelling in her right leg that began that morning while running. A blood pressure reading on this visit showed diastolic blood pressure of 96 mm. and systolic blood pressure of 133 mm. Another November 1994 record dated a week later reflects a blood pressure reading showing diastolic blood pressure of 80 mm. and systolic blood pressure of 126 mm. A December 1994 record reflects that the Veteran returned for re-evaluation of her leg pain, which had worsened. An initial blood pressure reading at this time showed diastolic blood pressure of 78mm. and systolic blood pressure of 152 mm. A second reading showed diastolic blood pressure of 76 mm., and systolic blood pressure of 124 mm. The February 1995 separation examination report reflects a blood pressure reading showing diastolic blood pressure of 86 mm. and systolic blood pressure of 137 mm. In the "Clinical Evaluation" section of the report, the Veteran's heart and vascular system where checked as normal. She separated from service in June 1995. The earliest evidence of hypertension is a December 2001 VA treatment record, in which the Veteran's systolic blood pressure was recorded as 148 mm., and her diastolic blood pressure recorded as 109 mm. She was diagnosed with hypertension and provided hypertension education at that visit. Nearly a year prior to that record, a February 2001 VA treatment record shows systolic blood pressure of 120 mm and diastolic blood pressure of 60 mm. That record states she did not have hypertension. The above evidence shows that, based on VA's regulatory definition of hypertension under 38 C.F.R. § 4.104, DC 7101, the Veteran's hypertension did not manifest in service. The November 1994 record showing diastolic blood pressure of 96 mm. that would be diagnostic of hypertension were it shown to be predominant and confirmed by readings taken two or more times on at least three different days. See 38 C.F.R. § 4.104, DC 7101. The service treatment records instead show the contrary. They show that on subsequent readings, her diastolic blood pressure was consistently below 90 mm., which is the minimal level of pressure that must be shown to warrant a diagnosis of hypertension under the regulatory definition. The service treatment records further show that the Veteran's systolic blood pressure was consistently below 160mm., which is the minimal pressure to warrant a diagnosis of isolated systolic hypertension. See id. The service treatment records further show that no notations were made in those records reflecting findings of abnormal blood pressure or hypertension. Her heart and vascular system were clinically evaluated as normal at separation. Based on the service treatment records, the Board finds that the Veteran's statement that she was diagnosed with hypertension in service is not credible. In that regard, there must be a proper foundation to draw adverse inferences against the credibility of testimony from silence in the record. Fountain v. McDonald, 27 Vet. App. 258, 272 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Such a foundation may be established by finding that the fact being claimed would ordinarily have been recorded in the available records had it occurred. Id. Thus, the Board may not rely on an absence of treatment without explaining "why the appellant would reasonably have been expected to report his symptoms to medical providers." Fountain, 27. Vet. App. at 273. The Board must also consider whether it is qualified to make that determination, or whether independent medical evidence is required. Kahana v. Shinseki, 24 Vet. App. 428, 434-35 (2011) (holding that the Board improperly found that a claimed injury would have been documented at the time, as there was no independent medical evidence to support that determination.) In determining whether a claimant's statements are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Here, there is not merely silence in the service treatment records. Rather, they affirmatively show that the Veteran did not have hypertension, as they show numerous blood pressure readings, all but one of which were below the values diagnostic of hypertension. As discussed, a one-time high blood pressure reading cannot establish a diagnosis under the regulatory definition. Moreover, they show that the Veteran's heart and vascular system were evaluated as normal at separation. Thus, because the service treatment records are not merely silent for hypertension, but directly conflict with the Veteran's statement by generally showing blood pressure readings below the levels indicative of high blood pressure, by showing a lack of findings of hypertension or high blood pressure, and by showing that her heart and vascular system were found to be normal at separation, the Board finds that her statement that she was diagnosed with hypertension in service is not credible, and therefore not probative. See id. There is also no evidence that the Veteran's hypertension manifested, or was noted, within a year following separation. As discussed, a February 2001 VA treatment record shows systolic blood pressure of 120 mm., and diastolic blood pressure of 60 mm., which is well below the levels diagnostic of hypertension. See 38 C.F.R. § 4.104, DC 7101. Moreover, that record specifically states that she did not have hypertension. The February 2001 VA treatment record constitutes probative evidence that her hypertension did not manifest within a year of service separation, which was years before that record. In its prior remand, the Board directed that a VA medical opinion be obtained to address the in-service blood pressure readings that seemed elevated, including the November 1994 record showing diastolic blood pressure of 96 mm. In the November 2021 medical opinion, the examiner found that the Veteran's hypertension is less likely than not related to the elevated blood pressure readings in service. The examiner explained that these were associated with increased weight and with pain in the Veteran's right leg, and that she was not found to have hypertension until 2001. The Board finds that the November 2021 VA medical opinion is adequate to make an informed decision, even if the reasoning was not fully spelled out. In that regard, "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion." Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012). It is clear that the examiner found the Veteran's temporary high blood pressure reading in service to be due to her right leg pain, rather than a manifestation of hypertension or the beginning of the development of hypertension. That finding is consistent with the fact that the Veteran was being treated for leg pain when the elevated blood pressure readings were recorded. Indeed, the one time that her diastolic blood pressure was recorded as above 90 mm., she was being due to an onset of leg pain and swelling that same morning. When she was seen a week later on an unrelated matter, her blood pressure was well before the levels indicative of hypertension. However, when seen in December 1994 for increased leg pain, her blood pressure was recorded as somewhat higher yet still below the levels diagnostic of hypertension although on re-reading it was much lower. Thus, the examiner's finding that the Veteran's higher blood pressure readings were linked to pain is supported by the evidence. The examiner further found that the Veteran's elevated readings may also be tied to weight gain during service. Her issues with controlling weight are noted in the service treatment records, as in a March 20, 1988 entry, and this is also noted in her DD 214 as the reason for separation. The February 1995 separation examination report shows that the Veteran's weight was much higher at that time compared with the June 1988 enlistment examination. Finally, the examiner found that the Veteran's hypertension did not manifest until a number of years after separation, which is consistent with the evidence discussed above showing an initial diagnosis in December 2001, together with the February 2001 treatment record showing normal blood pressure (or at least well below the levels indicative of hypertension) and a finding that she did not have hypertension. In sum, the VA examiner found that because the Veteran's hypertension did not manifest until a number of years after service separation, and because the few and transient elevated blood pressure readings in service were likely attributable to other causes at the time (pain and weight gain), her hypertension was not related to those elevated readings, as they were not indicative of hypertension or developing hypertension given these facts. The VA examiner's opinion is probative, as it is the conclusion of a medical professional based on review of the Veteran's pertinent medical history, and is supported by an explanation that is sufficient for the Board to make a fully informed decision. Accordingly, because the persuasive evidence weighs against a link between the Veteran's hypertension and any elevated blood pressure readings in service, the criteria for direct service connection are not satisfied. See Holton, 557 F.3d at 1366. Presumptive service connection for hypertension as a chronic disease is also not warranted, since hypertension was not noted in service or within a year of separation, including symptoms or signs indicative of developing hypertension. See 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). As the Veteran had service in the Persian Gulf, the Board has also considered whether presumptive service connection for hypertension may be established based on such service. The Board finds that presumptive service connection on that basis is not warranted, for the reasons that follow. Because the Veteran had qualifying service in the Southwest Asia theater of operations during the Persian Gulf War, she is considered a Persian Gulf Veteran. 38 C.F.R. § 3.317(e); 38 C.F.R. § 3.2(i) (providing that the Persian Gulf War began on August 2, 1990 and will continue until the date prescribed by Presidential proclamation or law). Compensation will be paid for disability due to undiagnosed illness and medically unexplained chronic multisymptom illnesses (MUCMI) to a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability if that disability: (i) became manifest either during active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2026, and (ii) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1); 38 U.S.C. § 1117. A "qualifying chronic disability" means a chronic disability resulting from any of the following (or any combination of the following): (A) An undiagnosed illness; or (B) A medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms such as chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders. 38 C.F.R. § 3.317(a)(2)(i). The term medically unexplained chronic multisymptom illness (MUCMI) means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 38 C.F.R. § 3.317(a)(2)(ii). Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. Id. For purposes of section 3.317, "objective indications of chronic disability" include both "signs" in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Here, the Veteran's hypertension is not an undiagnosed illness. The evidence also shows it is not a MUCMI. More specifically, in the August 2021 VA medical opinion addressing secondary service connection (discussed in the Board's prior decision on that issue), the examiner explained that essential hypertension tends to be familial and is due to increased peripheral vascular resistance. Thus, it is a condition with an at least partially understood etiology and pathophysiology, such as diabetes. See 38 C.F.R. § 3.317(a)(2)(ii). Further, it is not shown to be characterized by overlapping symptoms and signs, or to have features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 38 C.F.R. § 3.317(a)(2)(ii). Accordingly, as the Veteran's hypertension is neither an undiagnosed illness nor an MUCMI, it is not a qualifying chronic disability for which presumptive service connection based on her Southwest Asia service may be established. See 38 C.F.R. § 3.317(a)(1); 38 U.S.C. § 1117. There is no indication that the Veteran's hypertension may otherwise be linked to the Veteran's Southwest Asia service. Because the persuasive evidence is against the claim, there is not an approximate balance of positive and negative evidence; rather, the negative evidence substantially outweighs the positive evidence, for the reasons explained above. See Lynch, supra. Accordingly, the benefit-of-the-doubt rule does not apply. See id.; 38 U.S.C. § 5107. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rutkin, 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.