Citation Nr: 1334668 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-29 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for depression, to include as due to herbicide exposure during service. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus and/or as due to herbicide exposure in service. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1967. He was awarded the Combat Infantryman's Badge (CIB). This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. When this case was before the Board in December 2012, it was decided in part and remanded in part. It is now before the Board for further appellate action. In September 2013, the Nashville RO forwarded correspondence it received from the Veteran for inclusion in the Veteran's claims file. That correspondence is a claim for service connection for a heart disability. Additional medical evidence was received with that correspondence. As the evidence does not reference hypertension (the only heart disability currently before the Board), the Board does not have jurisdiction to decide the issue claimed and hereby refers the issue of entitlement to service connection for a heart disability apart from hypertension to the RO for appropriate disposition. FINDINGS OF FACT 1. The competent evidence of record does not show a diagnosis for depression. 2. Hypertension was not present in service or manifested to a compensable degree within the first year after discharge from service, and it is not etiologically related to service. 3. Hypertension is not due to, or aggravated by, the Veteran's service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. Depression was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2013). 2. Hypertension was not incurred in or aggravated by active service or caused or aggravated by a service-connected disability, and its incurrence or aggravation during service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist In correspondence dated in June 2006 and February 2009, the agency of original jurisdiction (AOJ) satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2008). Specifically, the June 2006 and February 2009 notice informed the Veteran of information and evidence necessary to substantiate the claim for service connection hypertension and depression and of the relative burdens of VA and the Veteran, relating the information and evidence that VA would seek to provide and that which he was expected to provide. This notice informed the Veteran of information and evidence that governs the initial assignment of a disability evaluation and the regulations regarding the effective date of the establishment of service connection. VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). Service treatment records have been associated with the claims file. All identified and available post-service treatment records have been secured. The Veteran has been medically evaluated in conjunction with both claims, and medical opinions have been sought. The Board has reviewed the resultant reports and finds that the examinations and opinions of record are adequate for rating purposes. Specifically, they were conducted based on a review of the pertinent information in the claims file and a complete examination of the Veteran. The opinions offered were accompanied by reasonable rationales that are supported by the clinical evidence. Thus, the Board finds that the duty to assist has been fulfilled. As a final matter, the Board finds that there has been substantial compliance with the Board's December 2012 remand directives. All recent VA records were obtained and associated with the claims file. As noted above, VA examinations for hypertension and psychiatric disabilities were conducted. The appeals are ready for disposition. II. Legal criteria In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2013). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests hypertension to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 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 the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2013). Any such veteran is thereby entitled to a presumption of service connection for certain disorders listed under 39 C.F.R. § 3.309(e) (2013). Neither hypertension nor depression is included in 38 C.F.R. § 3.309(e) as a disease that has been associated with herbicide exposure. Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). See Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Thus, presumption is not the sole method for showing causation. Service connection may also be granted for a disability which is proximately due to, or the result of another service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (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. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Entitlement to service connection for depression In essence, the Veteran claims that he has a current diagnosis of depression that is related to his military service. Specifically, he claims that his depression is due to exposure to Agent Orange while serving in Vietnam. The Board will address the Veteran's contentions below. With respect to the threshold consideration of whether there is a current diagnosis of depression, the record in fact does not show that there is a confirmed diagnosis that is separate from the Veteran's posttraumatic stress disorder (PTSD) diagnosis. When the case was before the Board in December 2012, the Board noted a May 2007 VA treatment record that included diagnoses for PTSD and depression. The Board remanded the case to obtain an opinion as to whether the Veteran had a separate diagnosis for depression or whether his depression was a symptom of his already service-connected PTSD. The Veteran was afforded a VA examination in December 2012. After conducting a thorough examination of the Veteran and reviewing the Veteran's claims file and medical record, the examiner diagnosed the Veteran with PTSD. The examiner noted that the Veteran's PTSD diagnosis included the symptom of depressed mood. The examiner found that no additional psychiatric diagnosis was warranted other than PTSD and explained that the depressive symptoms experienced by the Veteran occur within the context of PTSD and not necessarily in isolation. The examiner's opinion is corroborated by other evidence included in the claims file. An August 2002 VA treatment record noted some depression but the Axis I diagnosis was "R/O PTSD". In an October 2002 Vet Center intake record, a counselor noted that the Veteran manifested symptoms characteristic of PTSD including depressed mood. VA treatment records dated in February 2003, September 2005, and April 2009 included a diagnosis of only PTSD. The September 2010 VA examination report noted a diagnosis of only PTSD. The December 2009 VA examiner diagnosed the Veteran with PTSD and acknowledged the Veteran's report of symptoms of depression. As the opinion includes a reasonable rationale for the conclusion, and is supported by the other medical evidence of record, the Board places great weight on the opinion. Although the Veteran asserts that he has depression based on his exposure to Agent Orange, the Board finds that he is not competent to diagnose a psychiatric disorder. Lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine, on a case by case basis whether the subject of the Veteran's testimony is one as to which lay testimony is competent. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). In this case, the Board finds that the subject of whether the Veteran has a diagnosis of depression is the type of internal, non-observable psychiatric process as to which lay testimony is not competent. Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308-09 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). Although the Veteran is competent to say how he feels, diagnosing psychiatric disabilities is a matter requiring expert medical knowledge of the psyche, which is beyond the competency of a lay person. Thus, the Veteran's assertions are not competent in this regard. For the reasons expressly stated above, a separate diagnosis for depression is not demonstrated by the record. The medical evidence confirms that the Veteran's depressive symptoms are due to his service-connected PTSD and do not warrant a separate diagnosis. Absent proof of the existence of the disability being claimed, there can be no valid claim. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmitech v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Accordingly, the Board must conclude that the preponderance of the evidence is against the claim. Service connection for depression is not warranted. IV. Entitlement to service connection for hypertension The Veteran claims that his current diagnosis of hypertension is related to his exposure to Agent Orange and other environmental conditions to which he was exposed during his military service in Vietnam. The Veteran has alternatively claimed that his hypertension is secondary to his service-connected diabetes mellitus. The Board will address each theory of entitlement below. IV. Analysis Presumptive Service Connection Two presumptions are potentially applicable in this case, one for chronic diseases and one for diseases associated with exposure to herbicides. Referable to the presumption for chronic diseases, the evidence must show a diagnosis of hypertension within the first year after the Veteran's 1967 separation from service. On review of all of the evidence, the record does not demonstrate that the Veteran had a hypertension diagnosis to any degree within the first year after discharge from service. In a July 2006 VA examination, the Veteran reported having hypertension for approximately five years or more. In his August 2010 VA examination, the Veteran reported being first diagnosed with hypertension in the mid-1980s. During a December 2012 VA examination, the Veteran reported having hypertension for a long time, and he thought it was soon after discharge from the service. He further explained that he had been told that he had borderline hypertension for years, but would not take any medication. The examiner noted that there was no documentation of this in the claims file. The Veteran has provided contradicting statements of when he was first diagnosed with hypertension. The Board does not find that the Veteran's assertions as to initial diagnosis shortly after service to be credible. The vast majority of the Veteran's past statements show that he was diagnosed with hypertension in the mid-1980's or later. Therefore, a diagnosis of hypertension in the 1980's at the earliest is still well after the one year presumptive period from his separation in 1967. Accordingly, presumptive service connection under 38 C.F.R. § 3.309(a) for chronic diseases is not warranted. Referable to the presumption based upon herbicide exposure, the Veteran's DD Form 214 indicates that served for 11 months and 20 days in Vietnam. Therefore, he is presumed to have been exposed to herbicides. However, hypertension is not included in 38 C.F.R. § 3.309(e) as a disease that has been associated with herbicide exposure. Notably, in September 2011, the National Academy of Sciences (NAS) issued Veterans and Agent Orange: Update 2010 (Update 2010). The Secretary of Veterans Affairs, based upon Update 2010 and prior NAS reports, specifically concluded that a presumption of service connection based on exposure to herbicides in the Republic of Vietnam is not warranted for hypertension. See 77 Fed. Reg. 47924 (August 10, 2012). Therefore, service connection is not warranted under that provision. Direct Service Connection Although presumptive service connection based on chronic diseases or herbicide exposure is not warranted, the Veteran is not precluded from establishing direct service connection with proof of direct causation. On review of the evidence, the Board finds that direct causation is not established. Initially, the Board points out that neither the Veteran's hypertension, nor any associated symptom, was present in service. Neither his June 1965 pre-induction examination nor his October 1967 separation examination reflect hypertension. Presuming, however, that there may be merit in the argument that the Veteran's exposure to herbicides while serving in Vietnam could have caused hypertension, the issue becomes whether there is credible evidence of a nexus between the exposure and the current disability. In the December 2012 VA examination report, the examiner correctly stated that hypertension was not one of the conditions on the list of diseases presumed to be caused by Agent Orange. He further explained that the Veteran had a family history of hypertension and past history of smoking and alcohol use. The examiner found that the Veteran's hypertension is likely essential, as are the majority of cases of hypertension. Essential hypertension has no identifiable cause. The Board finds the VA examiner's opinion highly probative as he reviewed the claims file, considered the Veteran's statements, and examined the Veteran prior to providing the opinion. The examiner also fully explained the underlying reasons for his conclusion. The Veteran has presented no medical opinion evidence in support of his assertions of a nexus; however, he has offered lay statements to that effect. In this case, the Board finds that the subject of whether Agent Orange or other environmental factors could cause hypertension is the type of internal, non-observable medical process as to which lay testimony is not competent. The disability at issue is hypertension, a complex disorder of the cardiovascular system, which is not readily observable by a lay person. Furthermore, the case involves the purported effects of specific chemicals on that system years after exposure. Again, this is beyond the competency of a lay person. Thus, the Veteran's assertions are not competent in this regard, and there is no other evidence in support of the theory that exposure to Agent Orange or other in-service environmental factors caused his hypertension. Therefore, the criteria for service connection on a direct basis have not been met. Secondary Service Connection The Veteran alternatively claims that his hypertension is secondary to his service-connected diabetes mellitus. There is no question as to hypertension being currently diagnosed and service connection being in effect for diabetes mellitus. The crucial question, therefore, is whether there is nexus evidence establishing a connection (either by causation or aggravation) between the two. In an August 2010 VA examination, the examiner diagnosed the Veteran with essential hypertension and opined that as it predated the diagnosis of diabetes by several years, it is likely not secondary to diabetes mellitus. The examination report noted that diabetes mellitus had been diagnosed in 2006 and hypertension had been diagnosed in the mid 1980's, per the Veteran's report. The Veteran was afforded another VA examination in December 2012. The examiner explained that the Veteran had normal blood pressure at induction and at separation from the service. A hypertension diagnosis was mentioned in a February 2003 VA examination and the July 2006 VA examination notes that the Veteran reported having hypertension for five years or more. The August 2010 VA examination notes hypertension diagnosed in the mid-1980's. At the December 2012 examination, the Veteran reported having hypertension for a long time, soon after leaving the service, but that he did not want any treatment. The examiner noted that there was no documentation of this assertion. Diabetes mellitus was diagnosed in 2006. The examiner concluded that as the hypertension diagnosis pre-dated the diabetes mellitus diagnosis, hypertension was not caused by diabetes mellitus. In addition, the examiner found that it was less likely than not that the Veteran's diabetes mellitus has aggravated his hypertension. The examiner explained that the Veteran was on Norvasc and hydrochlorothiazide (HCTZ) with good control of pressure, and that there was no evidence of diabetic retinopathy or nephropathy. The Board finds these opinions highly probative of the issue of nexus. They were offered based on the review of the pertinent evidence of record, to include the timing element of the diagnoses at issue. The examiners offered reasons for their conclusions. The opinions are not otherwise contradicted by the medical record. As such, the Board affords them great weight in the determination at issue. The Veteran has presented no medical opinion evidence in support of his assertion that hypertension was caused or aggravated by diabetes mellitus. Similar to the discussion above regarding herbicides, as hypertension is a complex disorder of the cardiovascular system, it is not capable of lay observation and the Veteran's assertions as to causation and aggravation are not competent. As the nexus requirement remains unsatisfied, the Veteran's claim based on secondary service-connection is denied. In sum, the Board finds that the claimed hypertension was not present in service or manifested to a compensable degree within the first year after discharge from service, is not etiologically related to active service, and has not been caused or aggravated by a service-connected disability. Accordingly, the criteria are not met for service connection on a presumptive basis, direct basis, or secondary basis. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Service connection is not warranted. ORDER Service connection for depression is denied. Service connection for hypertension including as due to herbicide exposure is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs