BVA wrongly denied service connection for high blood pressure, definitive proof not required in VA benefits cases

BVA wrongly denied service connection for high blood pressure, definitive proof not required in VA benefits cases

Summary

The Veteran served on active duty in the United States Army from September 1968 to September 1971.  After service he filed a claim for service connection for high blood pressure.  He argued that this condition was secondary to Agent Orange exposure, or alternatively, secondary to PTSD.  In October 2008 a VA examiner diagnosed hypertension, but opined that it was not secondary to Agent Orange exposure.  He explained his reasoning, stating that no definitive relationship had been established between Agent Orange and the development of hypertension.  Additionally, the examiner noted that although stress from PTSD may acutely elevate blood pressure, there was no conclusive evidence that it caused sustained high blood pressure or aggravated it on a permanent or sustained basis.

Board denies service connection for high blood pressure

The Board denied service connection for hypertension in July 2016.  In the Veteran’s case, the Board adopted the October 2008 VA examiner’s opinions.  Specifically, it found that there was “no definitive relationship” and “no conclusive evidence” linking the condition to service.

However, those phrases indicated that the examiner utilized a higher standard of proof than required to grant service connection.  The Board failed to discuss this problematic language.  Instead, it simply reiterated the examiner’s negative linkage opinions and stated that there was no basis for service connection for hypertension.  In other words, the Board adopted the examiner’s incorrect standard and employed it to deny service connection.

With CCK’s help, the Veteran appealed to the Court of Appeals for Veterans Claims.

CCK appeals to Court and the Court agrees with CCK’s arguments.

The Court agreed with CCK’s argument and determined that the Board applied the wrong standard of proof.  The Court found that when evaluating evidence, the Board cannot demand a level of acceptance in the scientific community greater than the level of proof required by the benefit of the doubt rule.

The Court therefore remanded the Veteran’s case.  It ordered the Board to consider the evidence of record utilizing the correct standard of proof for VA benefits cases.  Furthermore, the Board was required to determine if further development was necessary.  Finally, the Court directed the Board to explain any discrepancies between the VA examiner’s “permanent or sustained basis” language and the language in the applicable regulation, which allows service connection for “any increase in severity.”  The Court set aside the Board’s decision for the issue of service connection for hypertension.  It also remanded the claim consistent with its decision.

To read a copy of the Court’s decision, click here. 

Category: Court Wins