Citation Nr: 0729313 Decision Date: 09/18/07 Archive Date: 10/01/07 DOCKET NO. 03-32 738 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Lawrence Keitt, Attorney ay Law ATTORNEY FOR THE BOARD Daniel Markey, Associate Counsel INTRODUCTION The appellant served on active duty from May 1971 to April 1974, had subsequent service in the Naval Reserves, and had active service from September 1990 to June 1991. This appeal to the Board of Veterans' Appeals (Board) is from a November 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied service connection for hypertension. By that same decision, the RO denied service connection for renal failure, claimed as due to hypertension. Then, in an October 2006 statement of the case (SOC), the RO determined that no substantive appeal had been filed and continued the denial of the veteran's hypertension claim. In April 2005, to support his claim, the veteran testified at a hearing at the RO before a Veterans Law Judge of the Board in Washington, D.C. (Video hearing). When the case was previously before the Board in May 2006, the Board found the veteran's appeal in this matter to be timely and then remanded the issue of service connection for hypertension for additional development. Specifically, the Board sought to obtain a Veterans Health Administration (VHA) medical opinion, which opinion was received in June 2007. Then, later in June 2007, the Board provided the veteran and his representative with an opportunity to submit additional evidence and/or argument within 60 days of the date of the letter. The veteran has not submitted additional evidence. FINDINGS OF FACT 1. The veteran was notified of the evidence needed to substantiate his claim, apprised of whose responsibility, his or VA's, it was for obtaining the supporting evidence, and all relevant evidence necessary for a fair disposition of his claims has been obtained. 2. Hypertension was shown prior to service and at the time of enlistment. 3. The competent medical evidence of record indicates the veteran's hypertension was aggravated during the veteran's active military service. CONCLUSIONS OF LAW 1. Hypertension was shown at enlistment and the presumption of soundness does not apply. 38 U.S.C.A. § 1111 (West 2002) 2. Hypertension was aggravated during active military service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act (VCAA) Although the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096, is applicable to the veteran's claim, the Board finds that it is unnecessary to address whether the duties to notify and assist have been met in view of the disposition reached herein. Law and Analysis Service connection will be granted if it is shown the veteran has a disability resulting from an injury sustained or a disease contracted in the line of duty, or for aggravation during service of a preexisting condition beyond its natural progression. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). In order to establish service connection for the claimed disorder, there must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection also may be granted for a preexisting condition if it was aggravated during service beyond its natural progression. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. I. Presumption of Soundness Generally, veterans are presumed to have entered service in sound condition as to their health. See 38 U.S.C.A. § 1111 (West 2002); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The presumption of sound condition provides: [E]very veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; see also 38 C.F.R. § 3.304(b) (2007). This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby, 1 Vet. App. at 227. The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions," Id. at (b)(1). The veteran was diagnosed with hypertension in March 1988, between his two periods of active duty service. This is shown by a Naval Reserve reenlistment examination that month. The veteran contends, essentially, that his hypertension was aggravated during the period of service from September 1990 to June 1991. In that regard, he essentially concedes that his condition pre-existed service. Therefore, the presumption of soundness does not apply to the veteran's hypertension. Bagby, supra. II. Presumption of Aggravation When a condition is properly found to have been preexisting, the presumption of aggravation provides that a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a) (1998); Crowe v. Brown, 7 Vet. App. 238 (1994). Clear and unmistakable evidence is required to rebut the presumption of aggravation in service where the pre- service disability underwent an increase in severity during peacetime service. 38 C.F.R. § 3.306(b) (1998); see Akins v. Derwinski, 1 Vet. App. 228, 232 (1991) (in the case of aggravation, the government must point to a specific finding that the increase in disability was due to the natural progression of the disease). "Flare-ups" of a preexisting condition do not constitute aggravation if there is no increase in severity of underlying disability. Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). Hypertension was not noted in his June 1991 separation examination, but service medial records show that the veteran was treated for hypertension and renal insufficiency from January to April 1991. Post service medical records show the veteran underwent treatment for severe hypertension and renal disease. In 2005, the veteran underwent a renal transplant. In the June 2007 VHA opinion, the examiner stated the following, in part: It is my opinion based on the available medical records that the [veteran] suffered from secondary hypertension due to renovascular disease. Was hypertension clearly and unmistakably aggravated beyond the natural progress of the disease process during service or within one year of military service? Yes with qualifiers. This opinion was based on medical findings that: (1) the veteran had proteinuria, a marker for kidney disease at the time of separation from his earlier period of service in March 1974, (2) the interval period between his time on active duty was remarkable for diagnosis of hypertension or at the very least pre-hypertension (staged before hypertension), (3) significant hypertension was present at the time of the veteran's re-enlistment examination in 1988, with a blood pressure reading of 150/ 116, (4) the veteran was hypertensive while on active duty as a medical encounter in November 1990 noted a blood pressure of 158/ 98 with no medication, (5) since the reason for the lack of treatment in November 1990 was unclear, the failure to have treated the veteran may have aggravated his renal disease, thereby aggravating his renal hypertension, (6) the veteran was on treatment for hypertension in 1991 at the time of separation, with a normal blood pressure, (7) the veteran was found to be anemic, with chronic kidney disease as a possible explanation, and (8) the veteran was diagnosed with horseshoe kidney and renovascular hypertension perhaps related to renal artery stenosis diagnosed in 1994. Based on this, the examiner summarized that the veteran had horseshoe kidney and hypertension prior to enlistment in military service, and that suboptimal control of this condition during his second period of active duty service leads to aggravation of renal disease and hypertension. The examiner also noted that the veteran's failure to control his disease after service lead to a worsening of this condition in the year following service. Furthermore, continued poor blood pressure control over the following time period resulted in the 2005 renal transplant. In essence, the examiner's opinion clearly indicates that the veteran's condition was present prior to his second period of active duty service from September 1990 to June 1991, but that his hypertensive disorder was also aggravated beyond its natural progression during this period of service. Based upon the above findings, the Board finds that the preponderance of the evidence establishes that the presumption of aggravation of a preexisting condition has not been rebutted. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). The Board observes that there are divergent opinions of record regarding the etiology of the veteran's claimed condition. November 2006 VA examiner's opinion says that the veteran's hypertension is less likely than not due to military service, while the June 2007 VHA opinion says that the veteran's hypertension did worsen during the veteran's active military service. In deciding these claims, it is the Board's responsibility to weigh the evidence (both favorable and unfavorable) and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. See Schoolman v. West, 12 Vet. App. 307, 310-311 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board is also mindful that it cannot make its own independent medical determination and there must be plausible reasons for favoring one medical opinion over another. Evans at 31; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Here, there is a legitimate basis for accepting the opinion of the June 2007 VHA examiner over that of the November 2006 VA examiner. The June 2007 VHA examiner is a physician who, on the basis of a review of the veteran's claims file, determined that the veteran's hypertension worsened during service. This physician's comprehensive review of the claims file, including, notably, the November 2006 VA examiner's opinion itself, is of greatest contribution to the probative value of this opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (discussing access of examining physician to the veteran's claims file as key factor in evaluating the probative value of a medical opinion). The VHA examiner's opinion is highly probative in addressing the exact issue before the Board -- opining that the veteran's hypertension did worsen beyond its natural progression. This opinion was based on a thorough review and discussion of the veteran's pertinent medical history. Because this opinion is the only probative opinion of record that squarely addresses the issue of aggravation, the Board finds it persuasive. The competent evidence of record has not rebutted the presumption of aggravation of hypertension. For these reasons, the Board has determined that service connection has been established for aggravation of preexisting hypertension during service. ORDER Service connection for hypertension is granted. _____________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs