Citation Nr: 22017527 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 10-42 973 DATE: March 25, 2022 ORDER Service connection for hypertension is denied. FINDING OF FACT Hypertension did not initially manifest during or within one year of the Veteran's active service and is not otherwise related to such service. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1999 to July 2009. Her claim comes before the Board of Veterans' Appeals on appeal of a May 2010 Department of Veterans Affairs (VA) rating decision. In September 2014, in support of this claim, she testified before a Veterans Law Judge at a hearing held in Washington, D.C. A transcript of this hearing is of record. However, the VLJ who conducted the September 2014 hearing is no longer employed by the Board due to retirement. Thus, in October 2020 correspondence, the Veteran was provided with an opportunity to testify at another hearing before another VLJ. The Veteran was advised that if she did not respond within 30 days, the Board would assume she did not want another hearing and proceed accordingly. As she did not respond, the Board may proceed with appellate consideration. In April 2015, the Board remanded this claim to the Agency of Original Jurisdiction (AOJ) for additional action, and in March 2018, the Board denied the claim. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In May 2019, based on a Joint Motion for Partial Remand (JMPR) requesting the Court to vacate the Board's decision, the Court remanded the matter to the Board for action consistent with the terms of the JMPR. The Board in turn remanded this claim to the AOJ in November 2019 and December 2020. Entitlement to service connection for hypertension The Veteran seeks service connection for hypertension on a direct basis as initially manifesting during active service as elevated blood pressure readings. During October 2009 and April 2017 VA hypertension examinations, she reported that she had been told that her blood pressure was elevated during two or three routine visits, including one month prior to the examination. She further reported that she was first diagnosed with and prescribed medication for hypertension in 2014, after her blood pressure readings had become consistently high. During her September 2014 hearing, she testified that she had pregnancy-induced hypertension and that her doctors had told her that, because she developed this condition so early in her pregnancy, she likely had the condition prior to becoming pregnant. The Veteran further testified that she had never been on medication for hypertension prior to the pregnancy, and nobody had ever told her that she was prehypertensive or had a problem. In December 2019, during her most recent VA hypertension examination, the Veteran reported a first abnormal blood pressure reading in 2008, her use of hypertension medication beginning in 2014, and the end to such use the week before the examination. In a May 2010 Notice of Disagreement filed in support of many claims, the Veteran's representative claims entitlement to service connection on a presumptive basis for disability related to service in the Persian Gulf. Although he never specifically refers to the Veteran's hypertension, he contends that the Veteran was exposed to open pit burning, depleted uranium and other environmental hazards associated with military operations during the Gulf War. He notes that 38 C.F.R. § 1154(b) applies in this case as the Veteran's combat service is verified. He argues that, based on this fact, the Veteran is entitled to a proper VA examination conducted by a qualified, credentialed clinician with expertise to offer an opinion on the etiology of the Veteran's conditions. The representative points out that it is VA's duty to return an examination report when it does not contain sufficient information. He argues that the evidence of record is in the Veteran's favor or, at the very least, in equipoise. He asks the Board for an explanation if it finds that the benefit-of-the-doubt rule is not applicable. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may be presumed for certain chronic diseases, including hypertension, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309(a). Where the evidence, regardless of its date, shows that the Veteran had chronic disease in service or during an applicable presumptive period and still has manifestations of the same chronic disease, service connection may be granted, unless clearly attributable to intercurrent causes. This does not mean that any in-service manifestation permits service connection. Rather, the evidence must show a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, not merely isolated findings or a diagnosis that includes the word chronic. When the disease entity is established, evidence of continuity is not required. 38 C.F.R. § 3.303(b). If there is no evidence of a chronic condition during service or an applicable presumptive period, continuity of symptoms after service must be shown. 38 C.F.R. § 3.303(b). This requires the following: (1) a condition noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptoms applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be presumed in the case of a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability (includes an undiagnosed or medically unexplained chronic multi-symptom illness) that manifests during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more no later than December 31, 2021. 38 C.F.R. § 3.317(a)(1). A Persian Gulf veteran is defined as one who served on active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). The period of the Persian Gulf War extends from August 2, 1990, through the present. 38 C.F.R. § 3.2(i). As this claim involves hypertension, a known, diagnosed, medically explained illness, the provisions pertaining to presumptive service connection for disability incurred during the Persian Gulf War are inapplicable. The question for the Board is whether the Veteran has hypertension that initially manifested during or within a year of service or is otherwise directly related to service. For the reasons that follow, the evidence here is neither evenly nor approximately balanced with regard to this matter. Rather, it persuasively weighs against granting service connection for hypertension. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application in this case. Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). While the Veteran has a current diagnosis of hypertension, and evidence shows that she had some elevated blood pressure readings during service (systolic between 130 and 140), the record is devoid of competent evidence linking the hypertension to service, including the readings. In-service blood pressure readings include: 83/57 (2/99 enlistment examination); 110/52, 108/62, 103/59, 101/49, 117/58 (1999); 85/51, 84/48, 104/55, 123/68 (2000); 118/68, 101/59, 91/66, 118/57, 108/61, 108/62, 108/72, 110/75, 109/63, 100/63 (2001); 95/65, 103/61, 108/68, 102/63, 105/60, 121/50, 102/70, 116/74, 108/62, 97/62, 107/64, 116/85, 111/64 (2002); 126/84, 130/88, 116/84, 119/71, 111/62 (2003); 116/76, 120/77, 127/72, 125/85, 120/70, 130/71, 113/74, 115/73, 128/73, 126/75, 122/65, 129/69, 120/76; 137/85, 135/73, 139/85, 114/74, 110/73, 116/69, 116/75, 115/62, 111/67, 113/64. 122/75, 118/68 (2004); 130/72, 105/65, 114/74, 110/73 (2005); 133/76, 109/65, 118/77, 108/78, 140/83, 118/80 (2006); 133/71, 121/79, 121/74, 113/75, 118/69, 129/98, 132/89, 100/60, 135/87, 105/77, 121/79, 132/87, 132/63 (2007); 116/82, 120/74, 118/81, 126/71, 126/79, 124/77, 118/82 (2008); 115/80, 122/85 (2009) and 131/81 (2/09). During service, no medical professional diagnosed pre-hypertension or hypertension. They did, however, note weight gain in conjunction with the readings, and one advised the Veteran to keep an eye on her blood pressure (characterizing 140 systolic reading as the upper limit). During a March 2009 VA examination conducted while the Veteran was still on active duty, she had blood pressure readings of 128/62, 120/60 and 124/68 and reported no history of hypertension. During October 2009 and March 2010 VA examinations, she had three blood pressure readings of 110/84 and another blood pressure reading of 112/82. During outpatient treatment visits from 2009 to 2012, providers recorded either no hypertension or predominantly normal blood pressure readings. Some, however, noted elevated readings, including 137/90 and 132/98, but did not render hypertension diagnoses. The Veteran was first diagnosed with maternal/ gestational hypertension in 2014, while being followed for pregnancy. During the Veteran's first trimester, providers noted that she had no hypertension. Subsequently, a provider noted that chronic benign essential hypertension was complicating the pregnancy. Following the birth of the Veteran's child, providers diagnosed the Veteran with essential or systemic hypertension. The Veteran has since been receiving treatment for hypertension. Chronic hypertension was not shown during service, and the Veteran has not reported that she experienced continuous symptoms of hypertension from the time her blood pressure readings were elevated until she was diagnosed with chronic hypertension. (She characterized the condition as asymptomatic during a December 2019 VA examination.) A grant of service connection is therefore not warranted under 38 C.F.R. § 3.303(b), based on chronicity or continuity of symptomatology. Multiple VA examiners have addressed whether the hypertension is otherwise related to the Veteran's service. In April 2017, one such examiner ruled out such a relationship on the basis that the file included no objective medial evidence of a diagnosis of or treatment for hypertension during service. However, as the Board pointed out in its November 2019 Remand, this opinion is inadequate and not probative; the examiner did not consider the significance of the elevated blood pressure readings noted during service. In December 2019, a VA examiner too ruled out a relationship between the Veteran's hypertension and service, finding that the condition developed during pregnancy and was related to pregnancy. Again, as the examiner did not consider the significance of the in-service elevated blood pressure readings, this opinion is inadequate and not probative. In March 2021, in response to a December 2020 Remand seeking a new opinion, a VA examiner conducted a thorough review of the record and provided an opinion on the etiology of the Veteran's hypertension. This opinion, supported with rationale and medical literature, is probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). According to this opinion, the Veteran's hypertension is less likely than not incurred in or caused by service. The examiner based this opinion on the following findings: (1) On enlistment, the Veteran had blood pressure of 83/57 and a healthy weight of 126 pounds with no history of hypertension; (2) Service treatment records document normal blood pressure readings leading up to instances of elevated readings (systolic in the 130s and as high as 140), but these elevated readings are flanked by normal readings; (3) In 2007, the Veteran weighed 166 pounds on a periodic physical; (4) There is no in-service treatment for or a diagnosis of hypertension; (5) The Veteran's blood pressure remained normal for some years after discharge despite a steady weight gain; (6) The record includes a history of pregnancy-related hypertension dated to 2014; (7) The earliest indication of an emergent diagnosis of hypertension was in April 2018, when the Veteran's blood pressure was read as 151/98 and her weight was recorded as 215 pounds; and (8) The Veteran was then prescribed medication and started on a weight management program. The examiner described the in-service elevated blood pressure readings as transient blood pressure lability, preceded and followed by sustained periods of normal blood pressure. Citing to medical literature, he explained that, although there is mounting support to lower thresholds, currently accepted thresholds for elevated blood pressure constituting hypertension are greater than 140 (systolic) and 90 (diastolic). Diagnosing such a condition requires obtaining three to five repeat measurements over time that exceed the thresholds. He pointed out that acute pain is a known cause for elevated blood pressure, and the May 2006 elevated reading was significantly mitigated in the context of pain. He further pointed out that the October 2006 reading (the highest noted during service) was on the cusp of the 140/90 threshold. He indicated that, although he concedes the possibility that the transient in-service blood pressure elevation was a harbinger for later hypertension, this cannot be reasonably construed as a cause-and-effect service nexus for the Veteran's current hypertension. Rather, the emergence of diagnosed hypertension in tandem with post-service worsening obesity, a well-established cause-and-effect nexus with hypertension, constitutes a very significant, if not determinant, contribution to the condition. The Veteran's assertions thus represent the only evidence of record linking her hypertension to service, and these assertions are not competent. While the Veteran is competent to report having experienced lay-observable symptoms of hypertension, which she has not done, she is not competent to determine when her hypertension initially manifested or whether it is related to service. The issue is complex, requiring medical knowledge she does not have, and testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Board acknowledges the Veteran's earlier assertions that certain VA examinations were inadequate, but it corrected these inadequacies by remanding this claim to the AOJ for a VA examination and/or addendum opinion. The Veteran has not since asserted that the most recent opinion is inadequate. The Board also acknowledges the representative's assertion that 38 C.F.R. § 1154 is applicable in this case. However, the AOJ and Board and VA examiners have already conceded that the Veteran had elevated blood pressure readings in service, as alleged, satisfying the in-service element of a service connection claim. The provision cited is not relevant to the nexus element of a service connection claim, the only element not satisfied in this case. Finally, the Board acknowledges the Veteran's testimony that her doctors told her she likely had hypertension prior to becoming pregnant in 2014, and her contention that the evidence in favor of this claim is, at the very least, in equipoise. However, as there is no competent evidence of record establishing that the Veteran's hypertension manifested earlier, including during or within one year of service, or is otherwise related to service, let alone an absence of evidence the Board could find is in approximate balance, the criteria for entitlement to service connection for hypertension are not met. 38 U.S.C. § 3.102; 38 C.F.R. § 5107. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. N. 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.