Citation Nr: 1312851 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 09-32 414 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUE Entitlement to service connection for hypertension, to include as due to Agent Orange exposure. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran had active service from March 1946 to January 1956 and from April 1957 to January 1973. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by which the RO, in pertinent part, denied entitlement to service connection for hypertension. The Board remanded this matter for further development of the evidence in December 2010 and in July 2012, which has been accomplished satisfactorily, and the Board concludes that it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Exposure to herbicides in service is presumed. 2. Symptoms of hypertension were not chronic in service 3. Symptoms of hypertension have not been continuous since service separation 4. Hypertension did not become manifest to a compensable degree within one year of service separation 5. Hypertension is not etiologically related to service. CONCLUSION OF LAW Hypertension was not incurred in service, and service connection for hypertension may not be presumed based on the one-year presumption for a chronic disease. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 4.104, Diagnostic Code 7101 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Remand Compliance As noted above, this appeal involves remands by the Board for additional evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this case, the RO substantially complied with the Board's remand instructions by obtaining updated VA outpatient treatment records and associating them with the claims file. The RO also obtained a VA examination with an opinion addressing whether the Veteran's hypertension is related to service. As will be discussed below, the opinion obtained in response to the Board's December 2010 remand was deemed not to be adequate. The Board remanded the claim again in July 2012 for corrective action. The resulting November 2012 examination and opinion comply with the Board's remand instructions, as the opinion is based on a review of the claims file and pertinent service records, as well as an examination of the Veteran. The Board finds that there is substantial compliance with its instructions and no additional corrective action is necessary. Veterans Claims Assistance Act of 2000 (VCAA) VCAA and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice herein included provisions for disability ratings and for the effective date of the claim. In a timely letter in March 2008, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate this claim as well as what information and evidence must be submitted by the Veteran and what evidence VA would obtain. VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records and post-service VA clinical records as well as private medical records. The Board notes that service treatment records for the earliest period of service could not be obtained. In these circumstances, when a veteran's service treatment records are unavailable, VA's duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). The Veteran was also afforded VA medical examinations and opinions in connection with the claim. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the Veteran has been provided an adequate examination and opinion in this case. The November 2012 opinion was predicated on a full reading of the service treatment records, post-service VA and private medical evidence, and the Veteran's statements. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion regarding the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Neither the Veteran nor his representative has indicated, and the record does not otherwise indicate, any additional existing evidence that is necessary to decide the claim that has not been obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Law and Regulations 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.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). The Board notes that 38 C.F.R. § 3.303(b) applies only to the chronic diseases, such as hypertension, enumerated in 38 C.F.R. § 3.309(a). See generally Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as hypertension, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309(a). VA regulations provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). The following diseases are deemed associated with herbicide exposure, under current VA law: The following diseases are deemed associated with herbicide exposure, under VA law: AL amyloidosis, Chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), All chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Multiple myeloma, Non-Hodgkin's lymphoma, Parkinson's disease, Acute and subacute peripheral neuropathy, Porphyria cutanea tarda, Prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The foregoing diseases shall be service connected if a veteran was exposed to an herbicide agent during active military, naval, or air service, if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 ; 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. §§ 501(a), 1116; 38 C.F.R. §3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). VA regulations specify that the last date on which a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 41,442-41,449, and 61 Fed. Reg. 57,586-57,589 (1996). Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom, Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Layno, supra. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on a veteran's behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Discussion The Veteran contends that his current hypertension is due to herbicide exposure during service in Vietnam. In December 2010, the Board acknowledged Vietnam service. Thus, exposure to herbicides is presumed. 38 C.F.R. § 3.307(a)(6)(iii). However, hypertension is not listed among the diseases that are deemed associated with herbicide exposure. After a review of all the evidence, the Board finds that, while the Veteran was exposed to herbicides during service, based on his service in Vietnam, symptoms of hypertension were not chronic in service. The service treatment records contain several blood pressure readings that are not hypertensive. See Note (1) to 38 C.F.R. § 4.104, Diagnostic Code 7101. The Veteran reported in February 1968 that he had no history of high or low blood pressure. When examined in February 1969, his blood pressure was 132/80. In February 1971, his blood pressure was 102/80. When examined for service separation in January 1973, the Veteran's blood pressure was 112/88. The Veteran's vascular system and heart were examined and found to be clinically normal. The Board finds that the weight of the evidence demonstrates that the Veteran's hypertension did not manifest to a compensable degree within one year of service separation. A compensable rating for hypertension requires diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, Diagnostic Code 7101. The record contains no evidence regarding a diagnosis of hypertension dated before the 1980's. The Veteran has not identified any earlier diagnosis of hypertension, and has not identified treatment records that would reflect an earlier manifestation of hypertension to a compensable degree. In his notice of disagreement, he based his claim on treatment records showing initial diagnosis of hypertension in the 1980s. The Board also finds that the weight of the evidence demonstrates that symptoms of hypertension have not been continuous since service separation in January 1973. As stated, there is no evidence of hypertension until many years after leaving service. 38 C.F.R. § 3.303(b). The Veteran was treated at a service clinic for various complaints during the immediate post-service years. Notably, an October 1976 record includes a blood pressure reading of 132/84, which is not hypertensive. The next record of treatment was in February and March 1985, at which time the Veteran's blood pressure readings were 138/80 and 120/90, respectively. In May 1985, the Veteran's blood pressure was 130/94. The diagnosis was hypertension, inadequate control. Also significant regarding continuity of symptomatology, the current claim was not the first claim for disability compensation filed by the Veteran since service separation. The Veteran filed a claim in March 1985; however, at that time, he noted only hearing loss, tinnitus, and a knee disability. The Veteran did not mention a diagnosis of hypertension. While inaction for multiple years regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it is reasonable to expect that the Veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. In other words, the Veteran demonstrated in March 1985 that he understood the procedure for filing a claim for VA disability compensation, and he availed himself of that procedure where he believed himself entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting, than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim for hypertension just prior to the initial diagnosis, when viewed in the context of action regarding several other claims, may reasonably be interpreted as indicative of the lack of any prior diagnosis and the lack of a belief on the Veteran's part that he had symptoms of hypertension up until that time. The Board further finds that the weight of the evidence demonstrates that the Veteran's currently diagnosed hypertension, which was first diagnosed many years after service separation, is not related to service. Private treatment records dated in February 2008 reveal the opinion of the private clinician that the etiology of the Veteran's hypertension was unclear but was more likely due to his weight and obesity than to service. The clinician also asserted that military service could have added to blood pressure, particularly during service in Vietnam. A January 2011 private hospitalization report reveals that the Veteran was admitted for severe hypotension (low blood pressure). That report includes multiple diagnoses, including significant hypertension of uncertain etiology. In March 2011, the Veteran was afforded a VA medical examination. The examiner noted that hypertension was first shown in 1980, although the specific treatment record was not identified. The examiner provided the confusingly worded opinion that "[h]ypertension was permanently aggravated by agent orange could have exacerbated HTN changes. Coronary artery angiogram was negative for atherosclerotic changes with normal left ventricular function." The RO sought clarification of the March 2011 opinion; and, a March 2012 addendum, based on a review of the pertinent evidence, provides that the current hypertension is not caused by or due to Agent Orange or military service. The rationale was that the Veteran was not diagnosed with hypertension until after service, and hypertension itself is not known to be caused by or associated with exposure to Agent Orange. The Board sought additional clarification in its July 2012 remand. In November 2012, a VA examiner opined that the Veteran's hypertension was not likely due to service or any event therein because there was no evidence in the record to indicate that hypertension developed during service and because there was no evidence that hypertension was caused by any incident in service. The examiner emphasized that the Veteran's hypertension developed several years after service separation. The examiner also explained that hypertension was not a condition that was caused by herbicide exposure. It is the Board's responsibility to evaluate the evidence and to assign each report or opinion its due probative weight. Owens v. Brown, 7 Vet. App. 429, 433 (1995). In reviewing the evidence, the Board is free to favor one medical opinion over another if the Board provides an adequate statement of reasons or bases. Id.; see also 38 U.S.C. § 7104(d)(1). The Board finds that the November 2012 VA medical opinion is the most persuasive opinion regarding the etiology of hypertension. The opinion was based on a complete review of the pertinent evidence, and the examiner provided a rationale based on the pertinent evidence and general medical principles. The March 2012 opinion is completely consistent with the November 2012 opinion, and is also completely consistent with the evidence. The February 2008 private opinion first suggests that excess weight, and not service, caused the Veteran's hypertension. This is also consistent with, and does not conflict with the March 2012 and November 2012 opinions. To the extent that the private physician suggested a possible nexus to service ("could have"), such evidence is accorded no weight because it is inconclusive. See Obert, supra; see also Warren, 6 Vet. App. at 6 (holding that a physician's statement framed in terms such as "may" or "could" is not probative). The March 2011 VA opinion is also accorded no probative weight because it contains no rationale and is also inconclusive. Moreover, it addresses aggravation of hypertension by Agent Orange. There is no assertion or evidence showing that the Veteran had hypertension prior to his exposure to Agent Orange. The opinion is thus inconsistent with the evidence and is based on a false factual premise. The January 2011 diagnosis of significant hypertension of uncertain etiology is also inconclusive and does not suggest any relationship to service. That report also does not provide or suggest an etiological relationship between the Veteran's hypertension and coronary artery disease, which was also diagnosed. The Board also notes that service connection is not in effect for coronary artery disease. The Veteran contends that his hypertension is due to herbicide exposure in Vietnam. Such herbicide exposure is presumed based on the Veteran's Vietnam service. 38 C.F.R. § 3.307(a)(6)(iii). However, as set out above, hypertension is not a condition for which service connection is available presumptively based on herbicide exposure in Vietnam. 38 C.F.R. § 3.309(e). While the Veteran is competent to describe his observable symptoms, and while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the origins and causes of hypertension fall outside the realm of common knowledge of the lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." Thus, the Board cannot rely upon the Veteran's assertions regarding the etiology of his hypertension. For the reasons expressed above, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for hypertension, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for hypertension is denied. ____________________________________________ Lloyd Cramp Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs