HYPERTENSION

Summary

The veteran, who served in the U.S. Army from October 1993 to August 1998, appeals the denial of service connection for hypertension and the remand of a left foot condition. The veteran contended that hypertension developed due to the overuse of NSAIDs prescribed for his service-connected degenerative arthritis of the thoracolumbar spine. The Board acknowledged the lack of a formal hypertension diagnosis but found one could be reviewed based on prescription records and a VA examiner's opinion. The VA examiner concluded that NSAID use was less likely than not to have caused or aggravated the veteran's hypertension, citing normal kidney function as evidence against a causal link. The Board found this opinion well-reasoned and more probative than the veteran's assertions, denying service connection for hypertension. The Board also noted the veteran's claim for a left foot condition, which he stated was caused by a fall resulting from his back disability. However, the Board found the VA examiner's opinion regarding the foot condition inadequate, citing internal inconsistencies, lack of rationale, incorrect factual premises, and non-responsiveness. The foot claim was remanded for a new opinion addressing causation and aggravation by the service-connected back disability.

Rationale

VA examiner's opinion found less likely than not related to NSAID use; Normal kidney function cited as evidence against causation; Veteran's assertions on causation not given probative weight

Full Decision Text

Citation Nr: 24009488
Decision Date: 02/28/24	Archive Date: 02/28/24

DOCKET NO. 20-28 973A
DATE: February 28, 2024

ORDER

Service connection for hypertension, as due to service-connected degenerative arthritis of the thoracolumbar spine, is denied.

REMANDED

Entitlement to service connection for a left foot condition, as due to service-connected degenerative arthritis of the thoracolumbar spine, is remanded.

FINDING OF FACT

Hypertension is not shown to be causally or etiologically related to any disease, injury, or incident during service, and is not caused or aggravated by a service-connected disability. 

CONCLUSION OF LAW

The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from October 1993 to August 1998.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2018 by a Department of Veterans Affairs (VA) Regional Office.

Service Connection 

The Veteran contends that service connection is warranted for hypertension due to the fact that he treats his service-connected degenerative joint disease of the lumbar spine (hereinafter, "back disability") with non-steroidal anti-inflammatory drugs (NSAIDs), the overuse of which he believes caused him to develop hypertension. 

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 also be granted for any or 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).

Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

At the outset, the Board acknowledges that there is some disagreement in the record as to whether or not the Veteran has a formal diagnosis of hypertension. The medical record appears to lack such a diagnosis; however, the Veteran has been prescribed anti-hypertensive medication. Further, private treatment records contain remote notations that indicate that the Veteran has not been diagnosed with hypertension, and more current notations indicating treatment for the condition. A current diagnosis is the cornerstone of any service connection claim. See Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability).

Importantly, a VA clinician who examined the Veteran in relation to this claim provided her opinion regarding etiology of hypertension as if the Veteran had a formal diagnosis. Thus, in consideration of the evidence of record as a whole, the Board finds that the record contains a diagnosis of hypertension, such that its etiology can be reviewed herein. 

In May 2021, the Veteran underwent a VA examination. The examiner concluded it was less likely than not that the Veteran's hypertension was due to the use of NSAIDs,
 claim. See Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability).

Importantly, a VA clinician who examined the Veteran in relation to this claim provided her opinion regarding etiology of hypertension as if the Veteran had a formal diagnosis. Thus, in consideration of the evidence of record as a whole, the Board finds that the record contains a diagnosis of hypertension, such that its etiology can be reviewed herein. 

In May 2021, the Veteran underwent a VA examination. The examiner concluded it was less likely than not that the Veteran's hypertension was due to the use of NSAIDs, at any time, for any reason. She explained that the Veteran's kidney function has, at all times, been normal. If his use of NSAIDs caused his blood pressure to elevate, to the point that he was hypertensive, reduced kidney function would be expected. However, all testing of the Veteran's kidneys show that they were normal and well-functioning. Thus, NSAID use did not cause him to develop hypertension. As for aggravation, the examiner concluded that aggravation was absent, explaining again that the NSAIDs used by the Veteran to treat his back disability did not reduce the Veteran's kidney function, which would be expected if any relationship were to be found. 

Based on this evidence, the Board finds that the Veteran's claim for service connection must be denied. The Board accords sufficient probative weight to the opinion proffered by the May 2021 VA examiner. The examiner provided a rationale, relying on and citing to the records reviewed. Moreover, she offered a clear conclusion with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly-reasoned opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Notably, there is no contrary medical opinion of record.

To the extent that the Veteran himself asserts that his hypertension developed as a result of his back disability, the Board does not question the Veteran's sincerity in his belief that it is etiologically related to such. While he is certainly competent to provide information regarding symptoms and a medical history, there is no indication that he possesses the requisite medical training or expertise necessary to render him competent to offer evidence on matters such as a medical diagnosis or causation. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). As such, the Board accords his statements regarding the nature and etiology of his hypertension no probative weight.

Even if the Veteran was competent to provide an etiological opinion, which laypersons are able to do in some instances, the Board finds that the reasoned conclusion of the VA examiner is more probative than the Veteran's assertions. The medical professional has the training, experience, and expertise that the Veteran is not shown to have. As such, his opinion is outweighed by the opinions provided by the May 2021 VA examiner.

In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence is persuasively against the Veteran's claim for service connection, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021)(when the evidence persuasively favors one side or another, the benefit of the doubt doctrine is not for application). The claim is denied.

REASONS FOR REMAND

The Veteran asserts that pain and weakness in his back, caused by his service-connected back disability, caused him to fall in December 2017 while working to move a heavy load on a pallet jack, which then ran over his left foot and broke it. He asserts that he has a residual disability in the foot, for which service connection is warranted. The Board notes that he does not assert, and the record does not support a finding, that he developed a foot condition in service. See Robinson v. Shinseki, 557 F.3d 1355,
when the evidence persuasively favors one side or another, the benefit of the doubt doctrine is not for application). The claim is denied.

REASONS FOR REMAND

The Veteran asserts that pain and weakness in his back, caused by his service-connected back disability, caused him to fall in December 2017 while working to move a heavy load on a pallet jack, which then ran over his left foot and broke it. He asserts that he has a residual disability in the foot, for which service connection is warranted. The Board notes that he does not assert, and the record does not support a finding, that he developed a foot condition in service. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to considered "all possible" substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory).

In May 2021, the Veteran underwent a VA examination. At that time, the foot fracture was noted, and left foot displaced intra-articular fracture of fifth digit and fourth tarsometatarsal ligament strain was diagnosed. 

On the question of whether the diagnosed left foot condition was due to the Veteran's service, to include his service-connected back disability, the examiner concluded it was less likely than not. She explained that because the injury occurred nine years after his discharge from service [the Board notes, in fact, that the injury was 19 years after discharge] it was not due to service. She then explained that x-ray imaging of the Veteran's back were unremarkable, and unlikely to contribute to the accident. The examiner then addressed the Veteran's contention that his back disability caused his back to become "underdeveloped," causing him to fall and injure his foot. She explained that degenerative joint disease, the Veteran's diagnosed disability, does not cause loss of muscle mass, and no such underdevelopment was found. 

When asked to address aggravation of the Veteran's left foot by his service-connected back disability, the examiner merely copied her opinion regarding direct service connection, verbatim, only changing the final sentence to conclude "[t]he [V]eteran's claim is at least as less likely as not aggravated beyond its natural progression" [sic].

The Board must find that the May 2021 opinions are inadequate for the purpose of deciding the Veteran's claim. They are internally inconsistent, borderline incoherent, lack supporting rationale, are based on an incorrect factual premise, and are non-responsive to the questions presented. VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). It has not yet fulfilled that duty in this case, which is remanded to allow for fulfillment of that duty.

The matter is REMANDED for the following action:

Provide the Veteran's claims file to an appropriate clinician to offer an opinion which addresses the etiology of the Veteran's left foot condition. The need for an in-person examination is left to the discretion of the examiner selected to write the opinion. 

Following a review of the record, the examiner should address whether the Veteran's left foot condition was caused or aggravated by his service-connected degenerative joint disease of the lumbar spine. Both causation and aggravation must be addressed. 

(Continued on the next page)

?

For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology.

 

 

R. FEINBERG

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Jeremy J. Olsen, 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.