Citation Nr: 1323453 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 07-06 634A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hypertension, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating action of the Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida. The Veteran's appeal was remanded by the Board in November 2012. Consistent with the directives therein, a VA heart conditions examination was conducted in January 2013, wherein that examination report, the VA examiner provided an opinion as to the etiology of the Veteran's hypertension. Because the benefit sought on appeal was not granted, the RO issued the February 2013 Supplemental Statement of the Case. The Board thus finds that there has been substantial compliance with the directives of the November 2012 Remand, such that an additional remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's service treatment records show no evidence of hypertension; the probative and persuasive evidence of record does not relate the Veteran's hypertension to his military service, to include presumed exposure to herbicides. CONCLUSION OF LAW Hypertension was not incurred in, or aggravated by, active military service, and cannot be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide; and (3) that the claimant is expected to provide, in accordance with 38 C.F.R. § 3.159(b)(1). The foregoing notice requirements were satisfied by a June 2005 letter prior to the January 2006 rating decision on appeal. In addition, following that letter, the February 2007 statement of the case and January 2011 supplemental statement of the case were issued, each of which provided the Veteran additional time to respond. Also, to the extent the decision of the United States Court of Appeals for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires additional notice in claims for compensation, e.g., as to potential downstream issues such as assigning a disability rating or effective date, the Board finds no prejudice to the Veteran in proceeding with the present decision. As will be discussed in the following analysis, the Board is denying the Veteran's claim. As such, no rating or effective date will be assigned. The Board also finds that the duty to assist provisions of the VCAA have been met in this case. All evidence adequately identified by the Veteran relative to his claims has been obtained and associated with the claims file. This includes private treatment records, as well as service treatment records and service personnel records. Furthermore, neither the Veteran, nor his representative, has identified any other pertinent evidence not already of record which would need to be obtained for a fair disposition of this appeal. The Veteran was also provided with a VA heart conditions examination in January 2013, and the Board obtained opinions from a VA physician in July 2012 and August 2012. The Board finds the January 2013 examination to be thorough and adequate upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability under the applicable rating criteria. There is no indication in the record that any additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). All the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the appeal. The Veteran must not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). The Veteran seeks entitlement to service connection for hypertension. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). Other specifically enumerated disorders, including hypertension, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. A veteran who, during active military, naval, or air service, served 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 a veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a) (6) (iii). The diseases presumptively associated with said exposure now include chloracne or other acneform disease consistent with chloracne, Type II diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, Non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, Parkinson's disease, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), AL amyloidosis, and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) (2012); see Notice, 75 Fed. Reg. 168, 53202-16 (Aug. 31, 2010). Hypertension is not among the list of diseases associated with herbicide exposure under 38 C.F.R. § 3.309(e), and in fact, the notice at 75 Fed. Reg. 168, 53202 indicates that hypertension is not intended to be on the list of presumptive diseases for herbicide exposure and is not the same thing as ischemic heart disease. The Secretary of Veterans Affairs also has determined that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined a presumption of service connection is warranted. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 67 Fed. Reg. 42,600 (June 24, 2002). After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The benefit of the doubt rule is inapplicable when the evidence weighs against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Under VA regulations, the term hypertension means that the diastolic blood pressure is predominantly 90 millimeters of mercury (mm/Hg) or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm/Hg or greater with a diastolic blood pressure of less than 90 mm/Hg. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Also, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. Here, the Veteran asserts entitlement to service connection for hypertension on the basis that it resulted from herbicide exposure during his in-country service in Vietnam. His Department of Defense Form 214 reflected that he had service in Vietnam from December 1969 to November 1970. On that basis, exposure to herbicides is presumed. Unfortunately, as discussed above, hypertension is not among the diseases presumptively linked to herbicide exposure, so service connection for hypertension cannot be granted on a presumptive basis. 38 C.F.R. § 3.307, 3.309 (2012). However, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The United States Court of Appeals for Veterans Claims (CAVC) has specifically held that the provisions of Combee are applicable in cases involving herbicide exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). Here, there is no evidence of hypertension, as defined by VA regulations, in service. At the Veteran's June 1968 service entrance examination, his blood pressure was listed as 130/80 mm/Hg, and his vascular system was indicated to be within normal limits. On his corresponding June 1968 Report of Medical History, he indicated that he never suffered from high or low blood pressure. At his November 1970 service separation examination, his blood pressure test had the result of 120/80 mm/Hg, and his vascular system was again noted to be within normal limits. Subsequent to service, the Veteran has indicated that he was noted to have "borderline" blood pressure shortly following military service in approximately 1971 to 1972. However, he stated that he was not initiated on blood pressure medication until approximately 1988 or 1989. Significantly, on his April 2005 Application for Compensation, the Veteran indicated that he only suffered from "severe high blood pressure" since April 1992. Moreover, the earliest documented treatment for hypertension of record occurred in January 1998, at which time he informed his physician that he had been on Dilacor and Altrace to control his blood pressure for the past several years, but continued to have elevated blood pressure readings. In January 2011, the Veteran's representative submitted an article from U.S. News & World Report indicating that Agent Orange exposure may boost the hypertension risk for Vietnam veterans. The article detailed a report compiled by the U.S. Institute of Medicine at the request of VA which found that exposure to Agent Orange during the Vietnam Conflict may be raising blood pressure levels for veterans of that conflict. In response, the Board sought an opinion from a VA physician in June 2012 as to the likelihood that the Veteran's hypertension was related to his military service, to include presumed exposure to herbicides. The VA physician provided this opinion in July 2012. While acknowledging that VA did not currently associate Agent Orange exposure with hypertension, the physician indicated that, "It is my personal opinion that Agent Orange exposure is at least as likely as not associated with hypertension." The physician admitted that this was a "difficult question," but provided no real rationale for his conclusion other than emphasizing that the available epidemiologic studies were of insufficient quality, consistency, or statistical power to permit a conclusion regarding the presence or absence of an association between Agent Orange exposure and hypertension. Later in July 2012, the Board concluded that the VA physician's opinion was inadequate because it was a generalized statement of the physician's personal opinion rather than an opinion that addressed this particular Veteran and his specific circumstances. Moreover, the Board requested that the physician fully explain the reasons and bases for his opinion. In August 2012, the VA physician issued an addendum opinion which stated that: I believe this veteran's past experience to Agent Orange is at least as likely as not associated with his current diagnosis of hypertension. Epidemiologic evidence suggests an association between exposure to herbicides and the later development of hypertension. If this veteran was exposed to Agent Orange, and I find nothing in the records provided that dispute this, then his diagnosis of hypertension could be due to exposure to this herbicide. In its November 2012 remand, the Board found both the VA physician's July 2012 opinion and August 2012 addendum to be inadequate for VA purposes because the physician did not cite to this particular Veteran's medical history or documents in the claims file to support his nexus opinion. Rather, the physician only cited to general epidemiologic evidence which did not address the Veteran's case specifically. Moreover, the Board found that the VA physician's conclusion in August 2012 that the Veteran's hypertension "could" be due to herbicide exposure was speculative as well as inconsistent with his July 2012 opinion that Agent Orange exposure was at least as likely as not associated with hypertension. As such, the Board remanded the case so that the Veteran could be afforded a VA examination. In a VA examination report dated in January 2013, the examiner opined that the Veteran's essential hypertension was not caused by or related to his military service, to include his presumed herbicide exposure. In support of this conclusion, the examiner explained that the Veteran's service treatment records, to include his November 1970 separation examination, were silent for a hypertension diagnosis. Rather, his hypertension was diagnosed approximately 20 years following service. Instead, the VA examiner opined that the Veteran's essential hypertension was most likely caused by and related to the Veteran's natural age, a strong family history, a history of excess alcohol intake, and other non-service related factors. The examiner further explained that, although he considered the report of the Institute of Medicine as well as the July 2012 opinion and August 2012 addendum issued by the VA physician, there was insufficient evidence that herbicide exposure caused hypertension, and that VA directive did not support essential hypertension as a presumptive condition due to Agent Orange exposure. As such, the probative and persuasive evidence of record does not show that the Veteran's hypertension is related to service. For the reasons discussed above, the Board has afforded more probative value to the January 2013 VA examination report than to the opinion issues in July 2012 and August 2012, which were speculative in nature, did not provide adequate rationales to support the conclusions, and did not discuss the Veteran's specific medical situation. Thus, although hypertension is currently diagnosed, the pertinent regulatory criteria do not reflect the existence of hypertension, as a diagnosed disorder, until approximately 20 years subsequent to service. To the extent that the Veteran has argued that his hypertension developed as a result of his military service, to include as due to his conceded herbicide exposure, the Veteran is not competent to provide an etiology opinion regarding his hypertension. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Because there is no evidence of hypertension in service or for many years afterward, and the probative and persuasive evidence of record does not relate the Veteran's hypertension to his military service or to a service-connected disability, the preponderance of the evidence is against his claim for service connection. Hypertension also may not be presumed to be service connected because it did not manifest to a compensable degree within one year of service. 38 C.F.R. § 3.309 (2012). As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 54-56. ORDER Entitlement to service connection for hypertension is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs