HYPERTENSION

Summary

The veteran, who served from January 1985 to January 1988, appeals the denial of service connection for hypertension. The veteran contended that hypertension was either incurred during service or is secondary to his service-connected thoracolumbar spine disability with bilateral radiculopathy. The Board vacated its prior denial due to the submission of new evidence and a denial of due process. The veteran's service treatment records showed normal blood pressure readings during service, with the first diagnosis of hypertension appearing in post-service treatment records from 1994. A VA examination in November 2020 found hypertension but opined it was less likely than not related to service, a conclusion the Board found inadequate due to conflicting evidence. A subsequent VA opinion in July 2023 also found hypertension less likely than not proximately due to or aggravated by the service-connected spine condition, citing lack of chronic diagnosis in service and normal in-service readings. However, this opinion did not fully address intermediary causation or the "but-for" standard. A private medical opinion from J.B., PA-C in April 2024 concluded that the Veteran's service-connected orthopedic pain, associated obesity, and NSAID use were more likely than not contributing factors to the development and progression of his hypertension, finding that but for the service-connected disabilities, hypertension would have been less severe. The Board found the evidence to be in equipoise regarding secondary service connection for hypertension. Resolving doubt in the veteran's favor, service connection for hypertension was granted on a secondary basis.

Rationale

Evidence in equipoise regarding secondary service connection; Private opinion found probative for secondary causation; VA opinion found inadequate for not addressing but-for causation

Full Decision Text

Citation Nr: 24030807
Decision Date: 09/20/24	Archive Date: 09/20/24

DOCKET NO. 16-14 022
DATE: September 20, 2024

ORDER

The April 29, 2024 Board of Veterans' Appeals (Board) decision which denied service connection for hypertension is vacated.

Entitlement to service connection for hypertension is granted.

FINDINGS OF FACT

1. On the date of issuance of the April 29, 2024 Board decision, the Board received additional evidence which had not been considered in the April 2024 decision.

2. The evidence is at least in equipoise on the question of whether the Veteran's hypertension was caused or aggravated by a service-connected thoracolumbar spine disability with bilateral radiculopathy.  

CONCLUSIONS OF LAW

1. Vacatur of the April 29, 2024 Board decision which denied service connection for hypertension is warranted. 38 U.S.C. § 7104; 38 C.F.R. § 20.1000.

2. The criteria for service connection for hypertension as secondary to a service-connected thoracolumbar spine disability with bilateral radiculopathy are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from January 1985 to January 1988. 

In a January 2015 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for hypertension. The Veteran appealed the denial to the Board of Veterans' Appeals (Board).

In October 2019, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. In September 2020 the Board remanded the appeal to the RO. 

A July 2021 Board decision denied service connection for hypertension. The Veteran appealed the July 2021 decision to the United States Court of Appeals for Veterans Claims (Court). In February 2023, the Court granted a Joint Motion for Partial Remand (JMPR) for actions consistent with the terms of the joint motion. 

The Board remanded the appeal in June 2023. In April 2024, the Board again denied service connection for hypertension. 

1. Vacatur

The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904.

In May 2024 correspondence, the Veteran requested that the Board reconsider the April 2024 denial of service connection for hypertension based on supporting medical opinion evidence he had submitted in support of his appeal. The record shows that on the date of issuance of the April 29, 2024 Board decision, the Board had also received additional evidence from the Veteran addressing the appeal for hypertension. This evidence had not been considered in the April 2024 decision. Accordingly, the Board finds that the Veteran has been denied due process of the law and the proper remedy is vacatur. Accordingly, the Board finds that vacatur of April 29, 2024 Board decision which denied service connection for hypertension, is warranted. 38 U.S.C. § 7104; 38 C.F.R. § 20.1000.

The Board has readjudicated the appeal for service connection for hypertension in the decision below with consideration of the additional evidence submitted. 

2. Entitlement to service connection for hypertension

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38?U.S.C. §?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).  As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12?Vet. App.?247, 253 (1999), citing Caluza
 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).  As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12?Vet. App.?247, 253 (1999), citing Caluza v. Brown, 7?Vet. App.?498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).  

Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection.  38?C.F.R. §?3.303(b). 

Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including hypertension, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38?U.S.C. §§?1101, 1112; 38?C.F.R. §§?3.307, 3.309. 

Alternatively, service connection may be established under 38?C.F.R. §?3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38?C.F.R. §?3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The provisions of 38?C.F.R. §?3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38?C.F.R. §?3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

Service connection may also be awarded on a secondary basis if a claimant suffers a disability that is "proximately due to or the result of a service-connected disease or injury." See 38?C.F.R. §?3.310(a); but see Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023) (invalidating 3.310(b) for the use of the phrase "proximately due to" in the context of aggravation, which begs the question if 3.310(a) is similarly invalid). See 38?C.F.R. §?3.310(a) (secondary service connection is awarded when a claimant suffers a disability that is "proximately due to or the result of a service-connected disease or injury"). The Court in Spicer, found the phrase "proximately due to" under 3.310(b) inconsistent with section 1110 and, therefore "unlawful." Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023). For "aggravation of non-service-connected disabilities" it is enough to show that "but for" the service-connected disability the incremental-increase in severity of a nonservice-connected disease or injury would not have occurred. Further, if "the natural progression would have been less severe if it were not for the service-connected disability" that satisfies 1110. The Federal Circuit held that "the but-for causation standard is not limited to a single cause and effect, but rather contemplates multi-causal links, including action and inaction." In other words, "but-for causation is broad, undisputedly broader than proximate cause." The Federal Circuit further overturned CAVC's finding that 3.310
. 2023). For "aggravation of non-service-connected disabilities" it is enough to show that "but for" the service-connected disability the incremental-increase in severity of a nonservice-connected disease or injury would not have occurred. Further, if "the natural progression would have been less severe if it were not for the service-connected disability" that satisfies 1110. The Federal Circuit held that "the but-for causation standard is not limited to a single cause and effect, but rather contemplates multi-causal links, including action and inaction." In other words, "but-for causation is broad, undisputedly broader than proximate cause." The Federal Circuit further overturned CAVC's finding that 3.310 was a "permissible" construct of 1110. The Court held that 3.310(b) was unlawful and, therefore, invalid. In El-Amin v. Shinseki, 26?Vet. App.?136, 140 (2013), the Court held that a VA examination does not adequately address aggravation unless it rules out the possibility of aggravation. In Frost v. Shulkin, 29?Vet. App.?131 (2017), the Court held that there is no "temporal" requirement to receive an award of secondary service-connection and, therefore, a claimant is not precluded from service-connection under 3.310 merely because the primary service-connected disability was diagnosed after the disability claimed as secondary, "the primary disability need not be service-connected or even diagnosed at the time the secondary condition is incurred." Id. at 134. 

The Veteran asserts that during service his blood pressure became elevated, such that it reached or approached borderline hypertension. In the alternative, the Veteran contends that current hypertension is caused or aggravated by his service-connected spine disability with radiculopathy, which is also service-connected. 

At the time of his January 1985 entrance examination, the Veteran marked "no" for history of high or low blood pressure. His blood pressure was found to be 130/80. His blood pressure was 120/70 in September 1986, 120/84 in December 1986, 120/70 in February 1987, 120/78 in April 1987, 112/68 in May 1987, and 120/74 and 120/80 in July 1987. His service treatment records (STR) do not contain any statement that his blood pressure was high or borderline high. In January 1988, the Veteran declined a service separation examination. 

The Veteran's claims file contains records of post-service medical treatment from as early as 1994. In June 2006, the Veteran's treating physician G.S., M.D., noted that he had hypertension. Other private treatment records reflect notation of high blood pressure in office visits from June 2009 forward. Records of treatment in 2011 through 2018 by private physician M.A., M.D., reflect ongoing hypertension, treated with medication. 

At the time of his October 2019 Board hearing, the Veteran indicated that during service his blood pressure constituted borderline hypertension. He stated that possibly one or two years after service he saw a private physician, Dr. G.  He indicated that he had requested records from that doctor. He reported that presently he had been on medication to treat hypertension for more than twenty years. 

During a November 2020 VA examination, the Veteran reported that he was pre-hypertensive in service and saw service doctors for high blood pressure. He indicated that his elevated blood pressure was noted in 1995 during treatment for low back pain. He stated that in 1995, hypertension was diagnosed, and medication was begun. The examiner found that the Veteran had hypertension. The examiner opined that hypertension was less likely than not incurred in service or caused by events in service. As rationale, the examiner indicated that no chronic diagnosis was made for hypertension, that objective examination was normal, and that symptoms were subjective only. 

The Board finds that the November 2020 opinion is inadequate as the examiner's statement that chronic hypertension has not been diagnosed is in conflict with numerous private treatment records from the 2000s forward noting high blood pressure, hypertension, and treatment with medication. 

A March 2021 an addendum, the reviewer opined that the Veteran's hypertension less likely than not had onset in service or was otherwise related to disease, injury, or events in service. The reviewer indicated that the rationale provided in the November 2020 opinion should be disregarded. The reviewer noted that the earliest medical records showing diagnosis of hypertension was from many years after the Veteran's service. The reviewer also noted that an STR from July 1987 showed blood pressure readings within normal limits. The reviewer found that there was no objective evidence of onset of hypertension during service. 


 has not been diagnosed is in conflict with numerous private treatment records from the 2000s forward noting high blood pressure, hypertension, and treatment with medication. 

A March 2021 an addendum, the reviewer opined that the Veteran's hypertension less likely than not had onset in service or was otherwise related to disease, injury, or events in service. The reviewer indicated that the rationale provided in the November 2020 opinion should be disregarded. The reviewer noted that the earliest medical records showing diagnosis of hypertension was from many years after the Veteran's service. The reviewer also noted that an STR from July 1987 showed blood pressure readings within normal limits. The reviewer found that there was no objective evidence of onset of hypertension during service. 

A July 2023 VA opinion was obtained to address secondary service connection. The examiner opined that hypertension was less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner noted that the Veteran's service treatment records did not contain complaints, treatment, or diagnosis for this condition. The in-service evidence did not show an event, disease, or injury in service. The first evidence of a diagnosis of hypertension shown in the records of file was a report of hypertension in the treatment report dated June 16, 2006, from Comprehensive Care Medical Office, LLC. The Veteran did not receive treatment for the condition of hypertension while in the service. The examiner opined that the Veteran's lumbar condition could cause occasional reading of high blood pressure, but it was not a cause of hypertension. 

The July 2023 examiner further opined that hypertension was not at least as likely as not aggravated beyond its natural progression by the service-connected condition. She noted that back pain can cause an acute increase in blood pressure, however it is not known to be a cause of chronic hypertension. The Veteran's claimed hypertension was less likely than not aggravated beyond its natural progression by his back disability. She stated that things that can increase your risk of getting high blood pressure included being overweight, eating too much salt and not enough fruit and vegetables; not doing enough exercise; drinking too much alcohol or coffee (or other caffeine-based drinks); smoking; having a lot of stress; and being over 65. 

The Veteran submitted a private medical opinion from J.B., PA-C in April 2024 addressing secondary service connection. J.B. reviewed the claims file, and noted the Veteran's contention that hypertension was secondary to service-connected thoracolumbar degenerative disc disease with radiculopathy, with weight gain, chronic pain, and nonsteroidal antiinflammatory drug (NSAID) use for treatment as an intermediary step for causation. J.B. stated that private treatment records from Dr. MA. confirmed the Veteran's active diagnoses of hypertension and obesity. She discussed medical journal articles linking identifying obesity as a contributory cause of hypertension. She discussed articles identifying causes of obesity, indicating its relationship to physical activity levels. She also discussed articles showing that NSAID users had an increased risk of development of hypertension, and that chronic pain increased the risk of development of hypertension. 

J.B. opined that the Veteran's service-connected orthopedic pain, associated obesity, and NSAID use were more likely than not contributing factors in the development and progression of the Veteran's hypertension. She reasoned that the development of hypertension coincided with his weight gain secondary to his service-connected exercise limitations, and chronic NSAID use from orthopedic pain. She noted that research showed a strong causal relationship among NSAID use and chronic pain to hypertension. She opined, had the Veteran never incurred his service-connected disabilities, he more likely than not would have been able to maintain a healthy weight, not required chronic N29SAID use, and he may never have developed hypertension, and opined that certainly hypertension would have been less severe. 

After a review of all the evidence, lay and medical, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran's hypertension was caused or aggravated by a service-connected spine disability with bilateral radiculopathy.  

The evidence of record shows that the Veteran has current hypertension. J.B. opined in April 2024 that orthopedic pain associated with the Veteran's service-connected disabilities (thoracolumbar degenerative disc disease with radiculopathy of the bilateral lower extremities), associated obesity, and NSAID use more likely than not contributed to the development and progression of the Veteran's hypertension. Thus, the opinion shows that hypertension was more likely than not aggravated beyond its natural progress by the service-connected disabilities, with intermediary causation due to pain, obesity, and NSAID use. J.B. provided a complete rationale for the opinion rendered and the Board finds that the opinion is probative.

In contrast, the July 2023 VA examiner opined that hypertension was not, at least as likely as not proximately due
ined in April 2024 that orthopedic pain associated with the Veteran's service-connected disabilities (thoracolumbar degenerative disc disease with radiculopathy of the bilateral lower extremities), associated obesity, and NSAID use more likely than not contributed to the development and progression of the Veteran's hypertension. Thus, the opinion shows that hypertension was more likely than not aggravated beyond its natural progress by the service-connected disabilities, with intermediary causation due to pain, obesity, and NSAID use. J.B. provided a complete rationale for the opinion rendered and the Board finds that the opinion is probative.

In contrast, the July 2023 VA examiner opined that hypertension was not, at least as likely as not proximately due to, the result of, or aggravated beyond its natural progression by the service-connected condition. The rationale was back pain can cause an acute increase in blood pressure, however, it is not known to be a cause of chronic hypertension. The Board finds, however, that this rationale did not fully address the but-for causation standard, i.e. whether such an acute or incremental-increase in severity of a nonservice-connected disease or injury would not have occurred but for the service-connected disability, particularly where pain in this case is chronic and not acute. Moreover, while the examiner listed being overweight and a lack of exercise as risk factors for hypertension, the opinion did not address the intermediary question of whether the Veteran's service-connected spine disability with radiculopathy contributed to his obesity and or a lack of exercise such that it caused or aggravated his hypertension.  

The Board finds, therefore, that the evidence to at least be in equipoise as to whether the Veteran's current hypertension is proximately due to or aggravated beyond its natural progression by the service-connected spine disability with radiculopathy. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for hypertension is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102." 

Because the Board is granting service connection for hypertension on a secondary basis, the Board need not further address the questions of direct or presumptive service connection.

 

 

K. Parakkal

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Kung, Christine

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.