HYPERTENSION

Summary

The veteran, who served in the Army Reserve with initial active duty for training from October 1989 to February 1990, appeals the denial of service connection for hypertension. The claim was previously denied by the Agency of Original Jurisdiction (AOJ) in October 2013, with service treatment records (STRs) noted as negative for hypertension and no evidence of a service connection. The veteran did not file a notice of disagreement, and no new and material evidence was received within the one-year appeal period. The current appeal stems from a August 2014 rating decision, with the case returning for appellate review after multiple remands for additional development. The Board reviewed evidence submitted since the 2013 denial, including updated VA and private treatment records, SSA records, VA medical opinions, a private opinion from Dr. S.H., and lay statements from the veteran and his spouse. The Board found this evidence to be cumulative and redundant, failing to establish a nexus between the veteran's current hypertension and his military service or a service-connected disability. Specifically, the Board noted that while the evidence showed current diagnoses and treatment for hypertension, it did not link it to service. The Board also addressed alternative theories that hypertension was secondary to service-connected MDD with PTSD, lumbar spine degenerative joint disease, or migraines. However, the private opinion from Dr. S.H. was deemed unreliable due to lack of rationale, and VA medical opinions from November 2021, May 2022, and September 2022 all concluded it was less likely than not that hypertension was related to, caused by, or aggravated by service or service-connected conditions. The Board found these opinions sufficiently addressed the relevant medical questions. Therefore, the application to reopen the claim was denied.

Rationale

Service treatment records negative for hypertension diagnosis or treatment.; Post-service records did not establish nexus to military service.; VA medical opinions found less likely than not related to service or service-connected conditions.

Full Decision Text

Citation Nr: 23003290
Decision Date: 01/19/23	Archive Date: 01/19/23

DOCKET NO. 17-45 693
DATE: January 19, 2023

ORDER

New and material evidence not having been received, the application to reopen the claim of entitlement to service connection for hypertension is denied.

FINDINGS OF FACT

1. In a final rating decision issued in October 2013, the Agency of Original Jurisdiction (AOJ) denied service connection for hypertension. 

2. Evidence added to the record since the final October 2013 denial is cumulative and redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran's clam of entitlement to service connection for hypertension. 

CONCLUSIONS OF LAW

1. The October 2013 rating decision that denied service connection for hypertension is final.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2013). 

2. New and material evidence has not been received to reopen a claim of entitlement to service connection for hypertension.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the Army Reserve, to include a period of initial active duty for training (ACDUTRA) from October 1989 to February 1990.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2014 by a Department of Veterans Affairs (VA) Regional Office.  In January 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the record.  In April 2021, April 2022, and August 2022, the Board remanded the claim for additional development and it now returns for further appellate review. 

Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for hypertension, to include as secondary to service-connected multiple depressive disorder (MDD) with posttraumatic stress disorder (PTSD), lumbar spine degenerative joint disease, and/or migraines. 

By way of background, VA received the Veteran's original claim for service connection for hypertension in December 2011.  In an October 2013 rating decision, the AOJ considered his service treatment records (STRs) and post-service VA and private treatment records.  The AOJ noted that the Veteran's STRs were negative for a diagnosis of, or treatment for, hypertension.  It was further observed that there was no evidence of record documenting any permanent disability associated with such disorder that met the criteria for service connection.  Thus, the AOJ denied service connection for hypertension on the basis that there was no link between such claimed disorder and his military service. 

Later the same month, the Veteran was advised of the decision and his appellate rights; however, he did not enter a notice of disagreement.  Furthermore, no new and material evidence was physically or constructively received within one year of the issuance of such decision, and no relevant service department records have since been received.  In this regard, while service personnel records were associated with the file in February 2014, such are irrelevant to the Veteran's claim for service connection for hypertension.  Further, although updated VA treatment records and Social Security Administration (SSA) records dated within a year of the October 2013 rating decision were subsequently received, such only reflect current diagnoses and treatment for hypertension, facts that were previously of record at the time of the rating decision.  Moreover, while a September 2014 lay statement written by the Veteran's spouse was received, which chronicled his complaints of, and treatment for, hypertension/high blood pressure, such assertions are duplicative of those previously of record at the time of the issuance of the October 2013 rating decision.  Thus, the October 2013 rating decision is final.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2013). 

Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed.  38 U.S.C. §§ 7104(b), 7105(c).  The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed,
 decision.  Thus, the October 2013 rating decision is final.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2013). 

Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed.  38 U.S.C. §§ 7104(b), 7105(c).  The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.

New evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion.  Shade v. Shinseki, 24 Vet. App. 110 (2010).  For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The evidence received since the final October 2013 rating decision includes post-service VA and private treatment records; SSA records; November 2021, May 2022, and September 2022 VA medical opinions; a May 2022 private opinion rendered by Dr. S.H.; September 2014 and December 2020 lay statements written by the Veteran's spouse; and the Veteran's lay statements, to include his testimony at the January 2021 Board hearing.  However, the evidence received since the final October 2013 rating decision continues to fail to show that his current hypertension is related to any instance of his military service, or a service-connected disability.  

In this regard, the newly received VA and private treatment and SSA records continue to reflect diagnoses of, and current treatment for, the Veteran's hypertension, but do not suggest that such is related to any instance of his military service or a service-connected disability.  Additionally, the Veteran's spouse's September 2014 lay statement is duplicative of those previously of record at the time of the October 2013 rating decision, as such continues to reflect the belief that the Veteran's hypertension is related to his military service.  

Further, to the extent that the Veteran and his spouse advanced alternative theories of entitlement (namely that his hypertension is secondary to his service-connected MDD with PTSD, lumbar spine degenerative joint disease, and/or migraines), to include in her December 2020 lay statement and during his January 2021 Board hearing, the Board remanded the case in April 2022 and August 2022 in order to obtain VA medical opinions adequately addressing such theories.  Here, as previously noted in the August 2022 Board remand, while in her May 2022 private opinion, Dr. S.H. reported that she had been treating the Veteran for chronic pain and hypertension, and opined that his hypertension was more likely than not due to chronic pain, she did not identify the source of the chronic pain or provide a rationale for the opinion.  Thus, the Board cannot rely on it in adjudicating the Veteran's claim. 

In November 2021, a VA examiner opined that it was less likely than not that the Veteran's hypertension was proximately due to or the result of his acquired psychiatric disorder or back disorder.  In support thereof, she indicated that the medical literature had a plethora of articles that found a significant co-occurrence of vascular diseases including hypertension, obesity, and diabetes with psychiatric illness; however, the medical literature to date had not been able to definitely establish a causal relationship between hypertension and psychiatric illness.  Here, she noted that, while they co-occurred often, pathophysiologically such two entities were not related.  The examiner further indicated that, while it was possible for acute pain to lead to significant hypertension, it was unlikely that hypertension resulted from chronic pain.  Here, she noted that acute pain that is severe often induced hypertension due to increased sympathetic responses; however, chronic pain generally did not produce the same sympathetic response.  


 In support thereof, she indicated that the medical literature had a plethora of articles that found a significant co-occurrence of vascular diseases including hypertension, obesity, and diabetes with psychiatric illness; however, the medical literature to date had not been able to definitely establish a causal relationship between hypertension and psychiatric illness.  Here, she noted that, while they co-occurred often, pathophysiologically such two entities were not related.  The examiner further indicated that, while it was possible for acute pain to lead to significant hypertension, it was unlikely that hypertension resulted from chronic pain.  Here, she noted that acute pain that is severe often induced hypertension due to increased sympathetic responses; however, chronic pain generally did not produce the same sympathetic response.  

Thereafter, in a May 2022 VA medical opinion, the same VA examiner opined that the Veteran's hypertension was less likely than not aggravated beyond its natural progression by the Veteran's MDD and PTSD.  As rationale for the opinion, she reported that hypertension was a vascular issue secondary to multiple factors, including cholesterol buildup and chronic hypertrophy of the heart; however, MDD and PTSD was a psychiatric issue with a completely different phenomenon.  The examiner explained that the antipsychotics used to treat MDD and PTSD often resulted in metabolic issues, which led to weight gain and insulin resistance; however, such antipsychotics were not associated with hypertension. 

Moreover, in September 2022, the same VA examiner opined that the Veteran's hypertension was less likely than not proximately due to, the result of, or aggravated by the Veteran's mild lumbar spine degenerative joint disease or migraine inflicting migraine variants.  In support thereof, she indicated that, pathophysiologically, hypertension was due to hardening of blood vessel walls that led to increased resistance the heart had to overcome to maintain systemic perfusion; and such disease process as entirely distinct from that of degenerative joint disease and migraines.  Here, she noted that even the medications prescribed to treat lumbar spine degenerative joint disease and migraines did not have an effect on hypertension  The examiner further indicated that pain from degenerative joint disease and migraines only raised the blood pressure transiently, and did not lead to sustained hypertension, which was required to have a formal diagnosis of hypertension.  

Consequently, the newly received evidence fails to show a nexus between the Veteran's currently diagnosed hypertension and his military service or a service-connected disability.  In this regard, the Board acknowledges the Veteran's representative's December 2022 argument that the September 2022 VA medical opinion failed to address if the Veteran's service-connected back and/or migraines could have permanently aggravated his hypertension.  However, upon review, the Board finds that the September 2022 VA medical opinion, when read as a whole, sufficiently informs the Board of the medical expert's judgment on the relevant medical question of aggravation and the "essential rationale" for her opinion.  See Monzingo v. Shinseki, 26 Vet. App. 97, 105-7 (2012); Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). 

Thus, as the Veteran's claim for service connection for hypertension was previously denied based on the lack of a nexus or relationship to his military service and the newly received evidence likewise fails to address such missing element, the Board finds the evidence added to the record since the final October 2013 rating decision is cumulative and redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran's claim.  Therefore, as new and material evidence has not been received, the Veteran's application to reopen such claim must be denied

 

 

A. JAEGER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Koria B. Stanton, 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.