Citation Nr: 1331061	
Decision Date: 09/26/13    Archive Date: 09/30/13

DOCKET NO.  10-01 534	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for hypertension, to include as due to service-connected diabetes mellitus and exposure to herbicides. 


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran 


ATTORNEY FOR THE BOARD

J. Andrew Ahlberg, Counsel

INTRODUCTION

The Veteran served on active duty from January 1955 to February 1975. 

This case was previously before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that in pertinent part denied the Veteran's claim for service connection for hypertension.  The case was remanded by the Board for additional development in March 2012 and October 2012.  

In April 2013, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA).  The requested opinion was received by the Board in May 2013, and in June 2013, the Board provided the Veteran and his representative with a copy of that opinion, and indicated that he was entitled to submit additional evidence or argument provided within 60 days of the date of that letter.  In August 2013, the Veteran's representative acknowledged the VHA opinion and submitted further argument in response.  See generally 38 C.F.R. §§ 20.901, 20.903.

In June 2011, a hearing was held before the Acting Veterans Law Judge signing this document, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c).  A transcript of this hearing is of record.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2).


FINDINGS OF FACT

1.  The Veteran served in the Republic of Vietnam during the time period when exposure to herbicides is presumed.

2.  Hypertension is first shown many years after service and the weight of the competent evidence is against a conclusion that the Veteran's hypertension is etiologically related to service or the service-connected diabetes, to include by way of aggravation.   

3.  Hypertension is not presumed by regulation to be the result of exposure to herbicides and the weight of the competent evidence is otherwise against a conclusion that the Veteran's hypertension is etiologically related to exposure to herbicides during service.  

CONCLUSION OF LAW

Hypertension is not proximately due to or the result of service connected diabetes and was not incurred in or aggravated by service and may not be presumed to have been so incurred, to include as due to exposure to herbicide agents therein.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). 

Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g. Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).  As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R.
§ 3.159(b)(1). 

The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part.  See 73 Fed. Reg. 23,353 - 3,356 (April 30, 2008).  Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. 

VA's notice requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between a Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC).  Id.; Pelegrini, 18 Vet. App. at 112.  See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.   

In this appeal, in a January 2008 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection on appeal, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA; this letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations.  The June 2008 rating decision reflects the initial adjudication of the claim after issuance of this letter.  Hence, the January 2008 letter - which meets the content of notice requirements described in Dingess/Hartman and Pelegrini - also meets the VCAA's timing of notice requirement. 

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided.  Pertinent medical evidence associated with the claims file consists of the Veteran's service treatment reports (STRs), available post-service treatment records, and reports from VA examinations and the aforementioned VHA opinion addressing the claim at issue.  Also of record and considered in connection with the appeal is the transcript of the June 2011 Board hearing, as well as various written statements provided by the Veteran, and by his representative, on his behalf.  

The Board also points out that the Veteran was provided the opportunity to orally set forth his contentions during his hearing before the undersigned Acting Veterans Law Judge.  In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing fulfill two duties:  (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010). 

Here, during the June 2011 hearing, the undersigned enumerated the issue adjudicated herein.  The Veteran provided testimony asserting a relationship between hypertension and diabetes and exposure to herbicides during service, as well as the current nature of his hypertension, including its post-service manifestations.  The Veteran was advised that a medical opinion that hypertension was caused or aggravated by service-connected diabetes mellitus would be helpful.  Neither the Veteran nor his representative asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the June 2011 hearing.  As such, the Board finds that, consistent with Bryant, there has been compliance with the duties set forth in 38 C.F.R. 3.103(c)(2), and the hearing is legally sufficient.  To the extent any deficiencies were present, they were cured with further Board development which included a VHA opinion.

The RO, as directed by the most recent remand, obtained an amended opinion in November 2012 as to whether the Veteran's hypertension was the result of exposure to Agent Orange during service from the VA examiner who conducted the March 2012 VA examination.  Further medical opinion was obtained in the form of the previously referenced VHA opinion received in May 2013.  On this record, the Board finds that there has been substantial compliance with the Board's prior remand directives, and that no further RO action in this regard is necessary.  See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  

In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim.  Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal.  Any such error is deemed harmless and does not preclude appellate consideration of any matter herein decided, at this juncture.  See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error).  See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). 

II. Analysis

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

Service connection may be presumed for cardiovascular disorders to include hypertension which develop to a compensable degree within one year after discharge from service although there is no evidence of such disease during the period of service.  This presumption is rebuttable by probative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  Also, while the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree.  38 C.F.R. § 3.307(c). 

With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes.  Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned.  When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  

The United States Court of Appeals for the Federal Circuit recently clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to "chronic" diseases (such as cardiovascular disorders) listed under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

In certain cases, service connection can be presumed if a Veteran was exposed to an herbicide agent during active service.  In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, the Veteran must show the following: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; (2) that he currently suffers from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii).  38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e).  In this case, the Veteran is shown by evidence, to include that contained on his DD Form 214, to have served in the Republic of Vietnam during the period in which exposure to Agent Orange is presumed.

If a Veteran was exposed to a herbicide agent during active service, presumptive service connection is warranted for the following disorders:  AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type II 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), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e).  

Importantly for the instant case, hypertension is specifically excluded as a disease presumed to have resulted from exposure to herbicide agents.  See 75 Fed. Reg. 53,202, 53,204 (Aug. 31, 2010).

Pursuant to Section 3 of the Agent Orange Act of 1991, Public Law No. 102-4, 105 Stat. 11, the Secretary of Veterans Affairs (Secretary) entered into an agreement with the National Academy of Sciences  (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicides used in Vietnam and various diseases suspected to be associated with such exposure.  The NAS was to determine, to the extent possible, whether there was a statistical association between the suspect disease and herbicide exposure, taking into account the strength of the scientific evidence and the appropriateness of the methods used to detect the association; the increased risk of disease among individuals exposed to herbicides during the service in the Republic of Vietnam during the Vietnam era; and whether there is a plausible biological mechanism or other evidence of a causal relationship between herbicide exposure and the suspect disease.  The NAS was required to submit reports of its activities every two years.

The Secretary, under the authority of the Agent Orange Act of 1991 and based on the studies by the NAS, has determined that there is no positive association between exposure to herbicides and any 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 Notice, 61 Fed. Reg. 41,442-449, and 61 Fed. Reg. 57,586-589 (1996); Notice, 64 Fed. Reg. 59,232-243 (Nov. 2, 1999); Notice, 67 Fed. Reg. 42,600-08 (June 24, 2002); Notice, 72 Fed. Reg. 32,395-407 (June 12, 2007); Final Rule, 74 Fed. Reg. 21,258-260 (May 7, 2009); Final Rule, 75 Fed. Reg. 53,202-16 (Aug. 31, 2010).

When a disease is first diagnosed after service but not within an applicable presumptive period, service connection may nevertheless be established by evidence demonstrating that disease was in fact incurred during service.  See Combee v. Brown, 34 F.3d 1039, 1043-44  Fed. Cir. 1994).  If there is no presumptive service connection available, direct service connection can be established if the record contains competent medical evidence of a current disease process with a relationship to exposure to an herbicide agent while in military service.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303; Combee at 1043-44.

Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of 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) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability.  38 C.F.R. § 3.310(b). 

A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature.  Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009.  A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms.  Charles v. Principi, 16 Vet. App 370, 374 (2002).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011). 

Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). 

When there is an approximate balance in the 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(b); 38 C.F.R. § 3.102.  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.  The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.

The Board notes, at the outset, that it has reviewed all of the evidence of record, to include in the Veteran's paper claims file and the paperless, electronic (Virtual VA) file.  (The Virtual VA file reflects additional VA clinical records dated through August 2012 documented to have been considered in the August 2012 supplemental statement of the case.)  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.

Summarizing the pertinent evidence with the above criteria in mind, the STRs, to include the reports from the October 1974 separation examination (at which time blood pressure was recorded to 120/80) do not reflect hypertension.  The Veteran specifically denied having hypertension on the medical history collected at separation from service.  [The blood pressure readings collected during service included 98/56 in January 1961; 98/60 in September 1962; 112/70 in April 1964;
120/70 in June 1965; 120/80 in December 1972, and 100/76 in October 1973.] 

For reference purposes, VA defines hypertension as being present if the diastolic blood pressure is 90 mm Hg or more or the systolic pressure is 140 mm Hg or more, or if both are present.  See Veteran Benefits Administration (VBA) Training Letter 00-07 (July 17, 2000).  In isolated systolic hypertension, the systolic pressure is 140 mm Hg or more, but the diastolic pressure is less than 90 mm Hg.  Id.  Multiple blood pressure readings are required to confirm the diagnosis of hypertension with VA's rating schedule requiring 2 or more readings on at least 3 different days.  Id.  See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1).

The first filed a claim for service connection for hypertension in a statement received in November 2007, with the Veteran contending therein that service connection for hypertension was warranted as secondary to his service-connected diabetes.  [Service connection for diabetes was granted on the basis of the Veteran's presumed exposure to an herbicide agent by an October 2001 rating decision.]  An April 2008 VA examination report noted that hypertension was first diagnosed in 2006, and the Veteran himself testified at the June 2011 hearing before the undersigned that he was first told that he had elevated blood pressure in 2006.  See June 17, 2011, hearing transcript, page 10.  A VA examiner, as set forth below, has rendered opinions, without consideration of the presumed in-service Agent Orange exposure, that hypertension is not related to service.  

Given the above, and while such a claim does not appear been raised, entitlement to service connection for hypertension as being directly related to service, and without consideration of presumed exposure therein to herbicides, is not warranted.  See Maxson v. Goober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992).  See also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition).  In addition, as hypertension is first demonstrated well over one year after service, service connection on the basis of a "chronic" disease listed under 38 C.F.R. § 3.309(a) may not be granted.  

Also with respect to the April 2008 VA examination, the reports from which document that the claims file was reviewed by the examiner, the VA examiner opined that the Veteran's hypertension was less likely as not caused by or a result of diabetes mellitus type II.  The claims file also includes the July 2008 opinion of Dr. D.M., who stated that that the Veteran had a number of medical problems to include hypertension and diabetes mellitus, type II among others.  He stated that the combination of the Veteran's enumerated medical disorders and his being overweight were "more than likely . . . in[t]er related and probably service connected due to his exposure to Agent Orange during the Vietnam War."  

The Board determined that the medical opinions set forth above were insufficient to adjudicate the claim, and remanded the case in March 2012 for further VA examination and opinion.  Such an examination and opinion were completed by a VA examiner in March 2012, and the opinion by the examiner, documented to have been based on review of the claims file, was that it was less likely than not that hypertension was incurred in service.  She also stated that the Veteran's diabetes neither caused nor aggravated the Veteran's hypertension, and the rationale for this aspect of the opinion was that the Veteran's blood urea nitrogen (BUN) and microalbumin tests were normal and revealed no evidence of (even) mild diabetic nephropathy.  

The examiner who conducted the March 2012 VA examination made no reference to the presumed in-service exposure to Agent Orange, and did not address the contention of the Veteran, to include in sworn testimony to the undersigned, that his hypertension was the result of his presumed in-service exposure to herbicides.  In an October 2012 remand, the Board found that such an opinion as to whether the Veteran's hypertension was the result of exposure to herbicides was important because the Veteran submitted information that exposure to Agent Orange during service is associated with an increased risk in the development of hypertension.  This "information" is a reference to a military retiree bulletin submitted at the June 2011 hearing that made reference to an Institute of Medicine (IOM) report said to have found "limited evidence" that exposure to Agent Orange during service was "associated with an increased chance of developing high blood pressure in some [V]eterans."  This bulletin also referred to two other published "studies" that were purported to have indicated that Vietnam Veterans who handled Agent Orange had higher rates of hypertension.  
  
As directed by the October 2012 Board remand and as previously noted, an addendum opinion was completed in November 2012 from the same VA examiner who conducted the March 2012 VA examination.  This opinion was documented to have been based on a review of the claims file, and the conclusion of the examiner was that it was less likely as not that the Veteran's hypertension was incurred in or caused by service, with the same rationale provided by her in her March 2012 opinion; namely, that the Veteran's STRs showed normal blood pressure and no evidence of hypertension.  With specific reference to whether the Veteran's hypertension is etiologically related to the presumed exposure to herbicides during service, the examiner stated that "review of current medical literature shows that Agent Orange does not cause hypertension."

To further clarify the medical record, as indicated, the opinion from a VHA medical expert was requested.  In the request for this opinion, the Board set forth the medical record as set forth above, to include the IOM study, as well as additional medical literature submitted by the Veteran's representative in October 2012 discussing the link between diabetes and hypertension in the form of a WebMD article and VA training literature.  The request for the medical expert opinion also referenced a National Institute of Health report submitted by the Veteran's representative in March 2013 suggesting that increased insulin levels are an independent risk factor for the development of cardiovascular disease.  The medical expert was asked to consider this literature when rendering his/her opinions.   

The requested VHA opinion was completed in May 2013, and the first conclusion therein was that the Veteran's hypertension was not caused by the Veteran's diabetes mellitus.  The expert's rationale for this opinion was that while diabetes may cause hypertension, as noted in the referenced Web MD article, such is not the case for all diabetics.  The expert also noted that it was indicated in the very material submitted by the Veteran's representative in October 2012 that, "half of all diabetics have HTN, but it is not ordinarily due to the diabetes - except when it results from diabetic nephropathy . . . in general, the type of HTN that is present in diabetics is essential or primary hypertension (hypertension that develops without an apparent cause) and is not due to diabetes."  (Emphasis added).  It was noted that a similar statement was contained in VBA Training letter 00-06.  The examiner explained that the Veteran did not have microalbuminuria or diabetic nephropathy, and noted that the most recent report of the Veteran's microalbumin/creatinine ratio in 2001 was 5.0 (normal up to 30). 

The second conclusion by the medical expert in May 2013 was that the Veteran's hypertension was not aggravated by diabetes.  In making this determination, the expert explained that in order to show aggravation, it must be demonstrated that hypertension was worsened beyond its normal progression.  The expert said that the Veteran's treatment records noted that the Veteran had mild hypertension with normal blood pressure readings while being treated with hypertensive medication, and that his blood pressure had been "up and down" for several years prior to treatment, which was typical for an individual of the Veteran's age and weight.  

With respect to the question of whether the Veteran's hypertension was related to exposure to Agent Orange, the expert explained that the IOM study referenced by the Veteran, being [limited in that it was] retrospective and based on telephone interviews, was not "the type of high-quality study that would be able to separate out the complex confounding variables of these diseases."  The expert noted that a more in depth study specifically examining the question of whether hypertension is related to herbicides exposure in the Vietnam War was currently being conducted by the Army Chemical Corps.  She also explained that based on the total weight of all the medical literature (and not the limited references submitted by and on behalf of the Veteran), VA did not find hypertension to be presumptively related to Vietnam service, although they did affirm the conclusion of the IOM that there is "limited or suggestive" evidence of such an association.  As such, the expert emphasized that "a firm conclusion [linking hypertension to exposure to Agent Orange] is limited because chance, bias, and confounding [variables] could not be ruled out with confidence."  Given the described state of the medical research on the topic, the expert concluded that "I am unable to stay without resorting to mere speculation whether Agent Orange exposure caused the Veteran's HTN."  She concluded that she hoped this question would be answered by the ongoing Army Chemical Corps study. 

Applying the pertinent legal criteria to the facts summarized above, the Board notes initially that the adjudication of the Board includes the responsibility of determining the weight to be given to the evidence of record, and this responsibility includes the authority to favor one medical opinion over another.  See Cathell v. Brown, 8 Vet. App. 539, 543 (1996); Owens v. Brown, 7 Vet. App. 429, 433 (1995).  In the instant case, the only positive medical evidence specific to the Veteran, as opposed to the medical literature submitted by and on behalf of the Veteran which only provides general information discussing a link between hypertension and diabetes or Agent Orange, linking the Veteran's hypertension to diabetes and the presumed in-service Agent Orange exposure is the July 2008 opinion by Dr. D.M.  However, this opinion has significantly reduced probative value as it is essentially a bare conclusion with minimal rationale provided to support the conclusion reached.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a probative medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions).

In contrast to the July 2008 private medical opinion, the VA examiner and VHA expert have provided detailed rationale for their opinions that the Veteran's hypertension is not related to diabetes; that is, the absence of the diabetic nephropathy that would be suggestive of such a link.  Moreover, these opinions were based on a review of the claims file, and the medical expert's opinion in particular reflected consideration of the entirety of the evidence, to include the medical literature supplied by and on behalf of the Veteran.   See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the claimant's history).  Furthermore, unlike the opinion rendered by the private examiner, the VA medical opinions were supported by citation to clinical evidence.  See Black v. Brown, 5 Vet. App. 177, 180 (1995) (a medical opinion is inadequate when it is unsupported by clinical evidence.)  

In short and for the reasons stated above, and given the authority of the Board to do so, with respect to the medical opinions of record that are specific to the Veteran, the Board finds the probative value of the negative opinions rendered by the VA examiner and medical expert to exceed that of the positive opinion rendered by Dr. D.M.  See Cathell, Owens, supra. 

With respect to evaluating the probative value of the medical literature supplied by and on behalf of the Veteran, to the extent that any such literature supports a link between hypertension and diabetes or exposure to Agent Orange, the probative value of such evidence is minimized by the fact that it provides no information specific to the particular disease process associated with the Veteran's hypertension.  Moreover and as explained by the VA medical expert, to the extent this literature indicates that a link between diabetes and hypertension requires diabetic nephropathy, as the Veteran's diabetes is not shown to involve nephropathy, this medical literature in fact weighs against the claim.  As for the IOM report referenced by the Veteran, the medical expert has provided reasons why this report does not represent the type of a research "finding" from which one could, without resorting to speculation, use as a basis for linking hypertension to Agent Orange.  In short, and while mindful of the holding in Combee such that this fact is not dispositive of the matter, the determination by VA to not include hypertension in the list of diseases presumed to have caused by exposure to herbicides represents the current state of the medical research as to this topic.  In short therefore, this decision herein must necessarily be based on consideration of the totality of this medical research rather than being limited to selected medical research referenced by the Veteran.  Quite simply, the VHA examiner's opinion on the direct facts of this case outweighs the probative value of the generic information contained within the medical articles.

With respect to the assertions, to include in testimony to the undersigned, by the Veteran linking hypertension to diabetes and or in-service exposure to Agent Orange, the Board does not question the credibility or sincerity of these assertions as it is clear that it his true belief that his hypertension is either related to exposure to Agent Orange during service or his service-connected diabetes.  However, the Veteran and his representative do not appear to be competent to speak to the complex medical issues involved.  In any event, the Board places substantially greater probative weight to the opinions offered by the VA and VHA examiners who are shown to possess greater expertise and training than the Veteran and his representative to speak to the medical issues at hand.

For all the foregoing reasons, the Board concludes that the claim for service connection for hypertension, to include as due to service-connected diabetes mellitus and exposure to herbicides, must be denied.  In reaching the decision to deny this claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.   


ORDER

Service connection for hypertension, to include as due to service-connected diabetes mellitus and exposure to herbicides, is denied.  


____________________________________________
T. MAINELLI
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs