HYPERTENSION

CORY M. PICTON · 2026 · Case ID: A26039276

MIXED

Summary

The veteran, who served in the United States Marine Corps from November 2000 to September 2014 as a Radio Chief and Rifleman, appeals the denial of service connection for sleep apnea and an increased rating for degenerative arthritis of the spine. The Board granted service connection for hypertension, noting it was chronic in service and not attributable to intercurrent causes, citing blood pressure readings from 2009 and 2012. Service connection for a left shoulder strain was also granted, with the Board finding a March 2016 VA examiner's opinion probative and consistent with the veteran's testimony, despite a prior negative opinion. For the right shoulder disability, the Board found evidence in equipoise, granting service connection based on the veteran's testimony of an in-service injury and subsequent pain, and finding a prior VA examiner's opinion nonprobative due to lack of detail. The claims for sleep apnea and an increased rating for degenerative arthritis of the spine were remanded. For sleep apnea, remand is for a VA examination to determine its relationship to service, including the veteran's reported sleep issues and overweight status in service, correcting a duty to assist error. For degenerative arthritis of the spine, remand is for a new VA examination to assess the current severity and functional loss, correcting a duty to assist error related to the March 2016 examination's non-compliance with Sharp v. Shulkin and Correia v. McDonald regarding range of motion and flare-up information.

Rationale

Chronic disease shown in service; Blood pressure readings support in-service diagnosis; No intercurrent causes shown

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210406-151268

Full Decision Text

Citation Nr: A26039276
Decision Date: 04/28/26 Archive Date: 04/28/26

DOCKET NO. 210406-151268
DATE: April 28, 2026

ORDER

Entitlement to service connection for hypertension is granted.

Entitlement to service connection for left shoulder strain is granted.

Entitlement to service connection for a right shoulder disability is granted.

REMANDED

Entitlement to service connection for sleep apnea is remanded.

Entitlement to a rating in excess of 10 percent for degenerative arthritis of the spine is remanded.

FINDINGS OF FACT

1. The Veteran's hypertension was shown as chronic in service and not attributable to intercurrent causes.

2. The Veteran's left shoulder strain is related to service.

3. The Veteran's right shoulder pain began during service.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for hypertension were met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

2. The criteria for service connection for left shoulder strain were met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for service connection for a right shoulder disability were met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service in the United States Marine Corps from November 2000 to September 2014 with MOS of Radio Chief and Rifleman. His awards and decorations include the Navy and Marine Corps Achievement Medal (with Combat "V"), Combat Action Ribbon (Kuwait), Presidential Unit Citation - Navy, Marine Corps Good Conduct Medal (4), National Defense Service Medal, Iraq Campaign Medal with 3 Stars, Global War on Terrorism Expeditionary Medal (Iraq), Global War on Terrorism Service Medal, Sea Service Deployment Ribbon (6), Certificate of Appreciation (2), Expert Rifle Qualification Badge (5), and Sharpshooter Pistol Qualification Badge.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from the January and March 2021 rating decisions issued by the Agency of Original Jurisdiction (AOJ), a Department of Veterans Affairs (VA) Regional Office (RO).

In the April 6, 2021, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held before the undersigned Veterans Law Judge on October 21, 2024.

Therefore, the Board may only consider the evidence of record at the time of the January and March 2021 AOJ decisions on appeal, as well as any evidence submitted by the Veteran [or representative] at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decisions on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

However, because the Board is remanding the claims seeking service-connection for sleep apnea and an increased rating for degenerative arthritis of the spine, any evidence it could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

Benefit of the Doubt

VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (i.e., nearly equal) balance of positive and negative evidence regarding any material determination. Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38
38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (i.e., nearly equal) balance of positive and negative evidence regarding any material determination. Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each, and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to them. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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 connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service...This may be accomplished by affirmatively showing inception...during service or through the application of statutory presumptions. Each disabling condition shown by a veteran's service records, or for which he seeks a service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence." 38 C.F.R. § 3.303(a).

1. Entitlement to service connection for hypertension is granted.

The Veteran contends that he experienced about five to six years of high blood pressure before he left service, which continued even after service. See Hearing Transcript, dated Oct. 21, 2024.

The first element of service connection is met. The Veteran has a current diagnosis of hypertension with losartan for control. See CAPRI Record, dated Mar. 27, 2020. Therefore, he has a current disability. The second element of service connection is also met. The Veteran's high blood pressure was well-documented during service. See Rating Decision, issued Mar. 18, 2021. The Board is bound by this favorable finding. See 38 C.F.R. § 20.801(a). Consequently, it finds evidence of an in-service disease or injury.

The issue becomes whether the Veteran's hypertension was shown as chronic in service and not attributable to intercurrent causes.

Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. §
, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hypertension is a listed chronic disease.

Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For the purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm.

38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, Note (1).

The Veteran's hypertension was shown as chronic in service and is not attributable to intercurrent causes. He testified that he began to have high blood pressure after his last combat deployment in 2008 and that it continued through the remainder of his service. See Hearing Transcript, dated Oct. 21, 2024. Service treatment records show where he began to exhibit high blood pressure. Notably, on October 2009, his blood pressure was documented as 143/91. See STR, dated Oct. 28, 2009. Then, on November 15, 2012, it was 138/97. The following day, it was the same. See STRs, dated Nov. 15-16, 2012. In general, the Board notices that when clinicians observe an initial high blood pressure reading, they re-check it at least once to confirm. Be that as it may, the Board concludes that the above blood pressure readings, taken on three separate days, support finding an in-service diagnosis of hypertension. See 38 C.F.R. § 4.104, DC 7101, Note (1).

A nexus is not required when the same chronic disease manifests in service and after service. Groves v. Peake, 524 F.3d 1306, 1309-10 (2008) (medical nexus evidence demonstrating an etiological link is not necessary to prove service connection when evidence shows that a veteran had a chronic disease in service and that he still has the same chronic disease). While the Board concedes that the record lacks a positive nexus opinion, it is not inclined to remand this matter to develop potentially negative evidence when the evidence already of record forms an adequate basis for granting this claim.

The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination. 38 C.F.R. § 3.304(c). Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim. Andrews v. McDonough, 34 Vet. App. 216, 225 (2021).

As a chronic condition, any subsequent manifestations are service-connected unless attributable to intercurrent causes. No intercurrent causes have been shown in this case and therefore the Veteran's hypertension is attributable to service. See 38 C.F.R. § 3.303(b). Therefore, entitlement to service connection for hypertension is warranted.

2. Entitlement to service connection for left shoulder strain is granted.

The Veteran seeks entitlement to service connection for his left shoulder disability. See VA Form 10182, rec'd. Apr. 6, 2021.

The Board concludes that the Veteran has a current disability that is related to service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R
Veteran's hypertension is attributable to service. See 38 C.F.R. § 3.303(b). Therefore, entitlement to service connection for hypertension is warranted.

2. Entitlement to service connection for left shoulder strain is granted.

The Veteran seeks entitlement to service connection for his left shoulder disability. See VA Form 10182, rec'd. Apr. 6, 2021.

The first element of service connection is met. The Veteran has a current diagnosis of left shoulder strain. See Rating Decision Notification, issued Mar. 18, 2021. The Board is bound by this favorable finding. See 38 C.F.R. § 20.801(a). The second element of service connection is also met. The Veteran testified that he injured his shoulder during service. See Hearing Transcript, dated Oct. 21, 2024.

The issue is whether the current disability was incurred in or caused by service.

In May 2016, a VA examiner opined that the Veteran's shoulder disability was less likely related to service. VA Medical Opinion DBQ, dated May 4, 2016. In relevant part, the rationale was that there was no evidence showing where the Veteran had recurrent or unusually frequent strains in the military during his long career.

"[T]he absence of evidence cannot be substantive negative evidence without a proper foundation...to demonstrate that such silence has a tendency to prove or disprove a relevant fact." Fountain v. McDonald, 27 Vet. App. 258, 272 (2015); see also Buchanan v. Nicholson, 451 F.3d 1331, 1335-37 (Fed. Cir. 2006) (holding that the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). In this regard, the Board finds the VA examiner's opinion nonprobative.

In March 2016, a VA examiner opined that the Veteran's left shoulder strain most likely occurred when he was on active duty. The Board finds the opinion probative because it is consistent with the Veteran's testimony including the places, types and circumstances of his service. See 38 C.F.R. § 3.303(a).

Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current left shoulder disability is related to service. Accordingly, after resolving all doubt in his favor, the Board finds that service connection for left shoulder strain is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

3. Entitlement to service connection for a right shoulder disability is granted.

The Veteran seeks entitlement to service connection for a right shoulder disability. See VA Form 10182, rec'd. Apr. 6, 2021.

The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

The issue is whether the Veteran has a current disability that was incurred in or caused by service.

The first element of service connection is met. While there was no diagnosis for the right shoulder, the March 2016 VA examiner noted that a right rotator cuff condition was suspected. Moreover, the Veteran has indicated that he currently experiences shoulder pain. For the reasons explained below, the Board finds that the Veteran has a current disability, nevertheless.

The second element of service connection is also met. The Veteran testified that he landed on his right shoulder while fast-roping in Okinawa. See Hearing Transcript, dated Oct. 21, 2024. STRs show where he was seen with right shoulder pain for 2 weeks with gradual worsening and a physical examination revealed crepitus and grinding with passive range of motion. See STR, dated Apr. 13, 2004. While the assessment noted an acute shoulder strain, the Board finds evidence of in-service incurrence of a right shoulder injury.

In May 2016, A VA examiner opined that the Veteran's shoulder disability was less likely related to service. VA Medical Opinion DBQ, dated May 4, 2016. In relevant part, the rationale was that there was no evidence showing where the Veteran had recurrent or unusually frequent strains in the military
See Hearing Transcript, dated Oct. 21, 2024. STRs show where he was seen with right shoulder pain for 2 weeks with gradual worsening and a physical examination revealed crepitus and grinding with passive range of motion. See STR, dated Apr. 13, 2004. While the assessment noted an acute shoulder strain, the Board finds evidence of in-service incurrence of a right shoulder injury.

While the Board concedes that the record lacks a positive nexus opinion, it is not inclined to remand this matter to develop potentially negative evidence when the evidence already of record forms an adequate basis for granting this claim. The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination. 38 C.F.R. § 3.304(c). Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim. Andrews v. McDonough, 34 Vet. App. 216, 225 (2021).

The Veteran indicated that he has had right shoulder pain ever since he fell on it during service. "And then after that, I would go to the gym and I would be doing shoulder presses, and my shoulder would just give out." Hearing Transcript, dated Oct. 21, 2024. The Veteran testified, "if I do a shoulder workout, it's like my wife's two-pound weights." The Board finds the Veteran's statements probative regarding functional limitation that he has continued to experience due to right shoulder pain and/or giving out. See Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018) (holding that pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability if it reaches the level of a functional impairment of earning capacity). Be that as it may, the Board concludes that the Veteran's right shoulder pain has been capable of producing impairment of earning capacity ever since the initial injury.

In sum, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current shoulder pain arose in service. Thus, after resolving any doubt in his favor, the Board finds that service connection for a right shoulder disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

REASONS FOR REMAND

If the Board cannot grant the issue in full, it must remand the appeal to the AOJ to correct any pre?decisional duty?to?assist error under 38 U.S.C. §?5103A. The Board may also remand to correct any other statutory or regulatory error by the AOJ if correction has a reasonable possibility of aiding in substantiating the appellant's claim. See 38 C.F.R. § 20.802.

1. Entitlement to service connection for sleep apnea is remanded.

New and relevant evidence having been received, readjudication of the claim for entitlement to service connection for sleep apnea is warranted. See VA Form 21-4138, rec'd. Mar. 11, 2021.

The Veteran maintains that his sleep apnea is related to service.

The issue is whether the Veteran's current obstructive sleep apnea is related to his inability to achieve restful sleep during service. However, the evidence of record is insufficient to make a fully-informed decision on the issue.

The Board concludes that remand is necessary to correct a pre-decisional duty to assist error and to obtain a medical examination and opinion.

The Veteran maintains that his sleep apnea is related to service.

The Board concludes that remand is necessary to correct a pre-decisional duty to assist error and to obtain a medical examination and opinion.

The Veteran has a current diagnosis of obstructive sleep apnea. See June 2021 Sleep Studies. STRs document his reports of being unable to achieve restful sleep "sometimes" with a score of "unhealthy" in the sleep risk category. At the same time, he was considered overweight with a body mass index of 26.57. See Fleet and Marine Corps HRA, dated Aug. 19, 2010. The Veteran has indicated that his sleep apnea is related to service. However, to date, VA has not afforded him an examination to make that determination. Consequently, the Board is unable to make a fully-informed decision on the issue. Be that as it may, it finds that the low threshold for obtaining a medical examination and opinion in this case has been met. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

In sum, the absence of adequately responsive medical evidence in the claims file amounts to a pre-decisional duty to assist error that must be corrected. To this end, entitlement to service connection for sleep apnea is remanded.

2. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the spine is remanded.

The Veteran contends that he is entitled to a rating in excess of 10 percent for his service-connected degenerative arthritis of the spine.

The issue is whether the Veteran's disability manifested by (a) forward flexion of the thoracolumbar spine greater than 30 degrees; (b) combined range of motion of the thoracolumbar spine not greater than 120 degrees; (c) muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or (d) intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks. However, the evidence of record is insufficient to make a fully-informed decision on the issue.

The Board concludes that remand is necessary to correct a pre-decisional duty to assist error and to obtain a medical examination and opinion.

The rating decision on appeal relied on a March 2016 VA examination that does not adequately portray functional loss required for musculoskeletal ratings.

First, the March 2016 VA examination is not compliant with Sharp v. Shulkin, 29 Vet. App. 26 (2017). In that case, the United States Court of Appeals for Veterans Claims (Court) held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

Second, the March 2016 VA examination is not compliant with Correia v. McDonald, 28 Vet. App. 158 (2016). In that case, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing..."

Consequently, the Board is unable to make a fully-informed decision on the issue. That is to say, the absence of adequately responsive medical evidence in the claims file amounts to a pre-decisional duty to assist error that must be corrected. To this end, entitlement to a rating in excess of 10 percent for degenerative arthritis of the spine is remanded.

The matters are REMANDED for the following action:

1. Schedule the Veteran for a VA examination to assess the nature and etiology of his sleep apnea. The examiner must review the claims file and provide a response to the following:

(a.) Is the Veteran's sleep apnea at least as likely as not related to service, including inability to achieve restful sleep and being overweight during service?

2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the service-connected degenerative arthritis of the spine. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria during the appeal period.

(a.) The examiner must test the
anded.

The matters are REMANDED for the following action:

1. Schedule the Veteran for a VA examination to assess the nature and etiology of his sleep apnea. The examiner must review the claims file and provide a response to the following:

(a.) Is the Veteran's sleep apnea at least as likely as not related to service, including inability to achieve restful sleep and being overweight during service?

(a.) The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

(b.) In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

3. Provide a rationale to support the opinions.

Cory M. Picton

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Raymond P. Skinner III

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.

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