Citation Nr: 1338367 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 09-25 780 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for rheumatoid arthritis, to include as due to Agent Orange exposure. 2. Entitlement to service connection for hypertension, to include as due to Agent Orange exposure or as secondary to service-connected diabetes or coronary artery disease. 3. Entitlement to service connection for erectile dysfunction, to include as due to Agent Orange exposure or as secondary to service-connected diabetes or coronary artery disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from June 1961 to March 1964. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2008 and August 2008 rating decisions of the Department of Veterans Affairs (VA) regional office (RO) located in St. Petersburg, Florida. Jurisdiction has been retained by the RO located in Milwaukee, Wisconsin. After the issuance of the last Supplemental Statement of the Case (SSOC) in June 2011, certain VA treatment records were associated with the claims file, as well as a medical journal article and private treatment records submitted by the Veteran in support of his claims. The Veteran's representative subsequently filed a waiver of consideration by the agency or original jurisdiction (AOJ) of the newly associated evidence. See 38 C.F.R. § 20.1304 (2013). Therefore, a remand for readjudication by the AOJ is not required. The issue of entitlement to service connection for service connection for erectile dysfunction, to include as due to Agent Orange exposure or as secondary to service-connected diabetes or coronary artery disease, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In October 2009, before the Board promulgated a decision, the Board received a letter from the Veteran by way of his representative that expressed the Veteran's desire to withdraw from appellate review his claim for service connection for rheumatoid arthritis, to include as due to Agent Orange exposure. 2. The Veteran's hypertension is not shown by the competent medical evidence of record to be etiologically related to a disease, injury, or event in service or to a service-connected disability; hypertension was not shown in service or demonstrated to a compensable degree within one year of discharge from active duty. CONCLUSIONS OF LAW 1. The criteria for withdrawal by the Veteran of an appeal of a claim for service connection for rheumatoid arthritis, to include as due to Agent Orange exposure, have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.204 (2013). 2. Service connection for hypertension, to include as due to Agent Orange exposure or as secondary to service-connected diabetes or coronary artery disease, is not warranted, nor may it be presumed. 38 U.S.C.A. §§ 1110, 1112, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Dismissal With regard to the Veteran's claim for service connection for rheumatoid arthritis, to include as due to Agent Orange exposure, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2013). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2013). In October 2009, before the Board promulgated a decision in this matter, the Veteran by way of his representative submitted a written request to withdraw from appellate consideration his claim for service connection for rheumatoid arthritis, to include as due to Agent Orange exposure. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of the Veteran's claim, and it must therefore be dismissed. II. Veterans Claims Assistance Act of 2000 (VCAA) With regard to the Veteran's claim for service connection for hypertension, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board finds that VCAA letters dated in January 2008 (two), July 2008, June 2009, and February 2011 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2013). The letters informed the Veteran of what information or evidence was needed to support his claim, including claims based on secondary service connection, what types of evidence the Veteran was responsible for obtaining and submitting to VA, and which evidence VA would obtain. These letters, as well as a March 2006 letter, also explained how VA assigns disability ratings and effective dates. See Dingess, supra. The Board also concludes that VA's duty to assist has been satisfied. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). All of the Veteran's service treatment records, VA treatment records, and private treatment records have been associated with the claims file. The Veteran has not identified any outstanding, relevant treatment records for VA to obtain. VA's duty to assist also includes the duty to provide a VA examination when the record lacks evidence to decide a veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established in-service event, injury, or disease, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4) (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was provided with VA examinations relating to his claim in July 2009, June 2011 (with a December 2011 addendum), and October 2011. The Board finds these VA examination reports to be sufficient upon which to base a decision with regard to the Veteran's claim. The Veteran was interviewed and thoroughly examined, the examiners reviewed the claims file, and the examiners' opinions and rationale are sufficient upon which to base a decision with regard to the Veteran's claim, including his theory of entitlement based on secondary service connection to diabetes mellitus or coronary artery disease. The Board acknowledges that the VA examiners never addressed whether the Veteran's hypertension was directly related to herbicide exposure in Vietnam (which exposure is presumed in this case, as explained in the analysis below). In this particular case, however, the Board finds that because there is no competent evidence tending to indicate a link between the Veteran's hypertension and herbicide exposure, there is no duty to remand the Veteran's claim for such an opinion. In that regard, the Board acknowledges that the Veteran himself has asserted such a relationship. The Board notes, however, that as a lay person, the Veteran is not shown to have the medical education, training, and experience to offer a competent medical opinion as to the relationship between his presumed herbicide exposure in Vietnam and his hypertension, which requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). III. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2013). Such will support a grant of service connection when the disability at issue is one considered "chronic" pursuant to 38 C.F.R. §§ 3.307, 3.309 (2013). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred 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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A "disability which is proximately due to or the result of a service-connected disease or injury shall be service connected." 38 C.F.R. § 3.310(a) (2013). "Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence." 38 C.F.R. § 3.310(b) (2013); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran served on active duty from June 1961 to March 1964, including service in the Republic of Vietnam from January 1962 to January 1963. He claims that he has hypertension as a result of exposure to Agent Orange in Vietnam. In the alternative, he contends that his hypertension is secondary to his service-connected diabetes mellitus or coronary artery disease. For VA purposes, hypertension means that the diastolic pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160 or greater with a diastolic pressure of less than 90. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2013). A review of the service treatment records reveals no complaints, treatment, or diagnoses of hypertension or high blood pressure. On his March 1964 separation report of medical history, the Veteran checked the box indicating that he never had high blood pressure. His separation report of medical examination reflects that his blood pressure reading was 118/70. With regard to the post-service medical evidence, a February 1996 discharge summary from Hennepin County Medical Center reflects that an angioplasty was performed due to a myocardial infarction. A stabilization room report shows that he had denied any history of hypertension, although when the paramedics had arrived, his diastolic blood pressure was in the 90s. A catheterization report prepared during that hospitalization reflects diagnosed coronary artery disease, but not hypertension. The first medical evidence of diagnosed hypertension is a December 1996 private treatment record from the Park Nicollet Clinic. Recent VA treatment records reflect that the Veteran has been followed for diagnosed hypertension. The Board notes by way of background that the medical evidence of record reflects that the Veteran was diagnosed with diabetes mellitus around June 2005. See, e.g., VA Treatment Record, June 2005 (noting diagnosed new onset diabetes mellitus). As an initial matter, the Board acknowledges that exposure to herbicides in service has been presumed based on the Veteran's service in Vietnam from January 1962 to January 1963. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2013). In the case of veterans who have been exposed to an herbicide agent during active service, 38 C.F.R. § 3.309(e) provides presumptive service connection for certain listed diseases, including ischemic heart disease. The Board notes, however, that 38 C.F.R. § 3.309(e) was recently amended to include a new Note 3, which clarifies that, for the purposes of that section, the term "ischemic heart disease" does not include hypertension. Therefore, hypertension is not among the diseases listed in 38 C.F.R. § 3.309(e) for which service connection may be awarded on a presumptive basis. With regard to establishing service connection on a presumptive basis under 38 C.F.R. § 3.309(a), that regulation provides that service connection may be granted on a presumptive basis for certain listed chronic diseases, including hypertension, if manifested to a compensable degree within the applicable time period following service in a period of war or after January 1, 1947, which applicable period in the case of hypertension is one year of the date of separation from service. See 38 C.F.R. § 3.307(a)(3) (2013). As shown above, however, there is no competent medical evidence of record reflecting that the Veteran demonstrated hypertension to a compensable degree within one year of discharge from active duty. Rather, he separated from service in 1964 and his first documented diagnosis of record is in 1996. As such, service connection for hypertension cannot be granted on a presumptive basis under 38 C.F.R. § 3.309(a). The Veteran is not, however, precluded from proving service connection on a direct basis. See Combee v. Brown, 5 Vet. App. 248 (1993). To that end, the Veteran's service treatment records do not reflect that the Veteran had high blood pressure or hypertension during service. As noted above, the Veteran denied ever having high blood pressure on his separation report of medical history. Furthermore, the claims file contains no medical evidence linking a current diagnosis of hypertension to service. In fact, the Veteran himself has never asserted that he developed hypertension during his active duty service or as a direct result of his active duty service except insofar as he asserts that he has hypertension as a result of his (presumed) herbicide exposure in service. As noted in the VCAA section above, there is no competent medical evidence of record tending to link the Veteran's hypertension to his presumed herbicide exposure, and the Veteran, as a lay person, is not competent to etiologically link his hypertension to herbicide exposure in Vietnam, which requires medical expertise, given that it involves the complexities of the cardiovascular system. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board adds that the Veteran's own private physician, Dr. B.B., in his two letters dated September 2008 and March 2011 (addressed below) did not attribute the Veteran's hypertension to any herbicide exposure. Therefore, service connection cannot be warranted on a direct basis, including as a result of presumed in-service herbicide exposure. See Shedden, supra. With regard to establishing service connection for hypertension as secondary to the Veteran's service-connected diabetes mellitus or coronary artery disease, the Veteran was provided with VA examinations in July 2009, June 2011 (with a December 2011 addendum), and October 2011. The July 2009 VA examination report reflects that the examiner noted the Veteran's history of being diagnosed with hypertension in 1996, and diabetes mellitus in 2005. The examiner opined that the Veteran's hypertension was not caused or aggravated by his diabetes mellitus. The examiner's rationale was based on the Veteran's estimated glomerular filtration rate (eGFR), and on the fact that the Veteran was not diagnosed with diabetes until approximately 10 years after he was diagnosed with hypertension (mistransposed as "coronary artery disease"). After the July 2009 VA examination was performed, the Veteran asserted for the first time in his notice of disagreement that his hypertension was secondary to his service-connected coronary artery disease. A June 2011 VA examination report and December 2011 addendum reflect that the examiner opined that the Veteran's hypertension was not caused or aggravated by his coronary artery disease. The examiner reasoned that coronary artery disease or ischemia does not cause hypertension. The examiner further explained that hypertension is the result of the heart stroke volume and the arterial resistance from the body's vascular system, and that a blockage of coronary arteries would not result in increased blood pressure in the body's vascular system because it does not affect arterial resistance or directly affect stroke volume of the heart. Rather, the examiner explained that risk factors for hypertension are disorders that increase sympathetic neural activity without enhancing beta adrenergic responsiveness, or increase angiotensin II activity and mineral corticoid excess, and that coronary artery disease does not do either of these. The examiner cited a medical article, Overview of Hypertension in Adults by Frank J. Domino (UpToDate.com February 14, 2011). The October 2011 VA examiner opined that the Veteran's hypertension was less likely as not caused or aggravated by his coronary artery disease because the weight of medical evidence shows that coronary artery disease or ischemia does not cause hypertension. The examiner further explained that it is more likely than not that the current severity of the Veteran's hypertension is due to the natural progress of the condition or other factors unrelated to his coronary artery disease. The examiner also opined that the Veteran's hypertension is less likely as not permanently aggravated by his diabetes mellitus, and that it is more likely than not that the current severity of the Veteran's hypertension is due to the natural progress of the condition or other factors unrelated to his diabetes mellitus. The Board acknowledges that the June 2011 VA examiner noted that the Veteran's hypertension was first diagnosed in 2000 rather than 1996. Based, however, on the fact that the examiner unequivocally explained that coronary artery disease does not cause or aggravate hypertension because it does not result in increased blood pressure, the Board finds that the error in notation of the date of diagnosis of hypertension as 2000 rather than 1996 is irrelevant. Regardless, the subsequent October 2011 VA examination addressed whether the Veteran's hypertension was caused or aggravated by his service-connected coronary artery disease, and is not only in agreement with the June 2011 examiner's opinion but also is adequate by itself upon which to base a decision in this case with regard to the Veteran's theory of entitlement to service connection as secondary to coronary artery disease. In light of the above, the Board finds that the preponderance of the evidence is against a finding that the Veteran's hypertension was caused or aggravated by his service-connected diabetes mellitus or coronary artery disease. As shown above, none of the above VA examiners attributed the Veteran's hypertension to his service or to his diabetes mellitus or coronary artery disease, and there is no probative medical opinion of record that contradicts the opinions of the VA examiners. Also, the VA examiners all provided adequate rationales for their conclusions. The Board acknowledges the two letters from Dr. B.B. in which he opined that the Veteran's hypertension "could be" linked or related to his diabetes or heart disease. The Board finds, however, that these opinions that the Veteran's hypertension "could be" related to his diabetes or coronary artery disease to be merely speculative. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (evidence favorable to the Veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service is insufficient to establish service connection). Furthermore, the opinions offered no underlying rationale for the conclusions therein. The Board notes that it is the factually accurate, fully articulated, sound reasoning for a conclusion that contributes probative value to a medical opinion. The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Therefore, the Board finds that the probative value of Dr. B.B.'s speculative opinions is by far outweighed by the well-reasoned opinions of the VA examiners. The Board has considered all of the Veteran's other statements and contentions in support of his claim, including that his hypertension was either caused by his presumed in-service herbicide exposure, or caused or aggravated by his service-connected diabetes mellitus or coronary artery disease. Again, however, the Board notes that the Veteran is not shown to have the medical education, training, and experience to be competent to etiologically link hypertension to herbicide exposure, diabetes mellitus, or coronary artery disease, which requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board likewise acknowledges the Veteran's assertion that he was not diagnosed with hypertension until after his myocardial infarction in February 1996. While the Board acknowledges that this is true, nevertheless, again, as the Veteran is a lay person without medical education, training, and experience, the Board ultimately finds the competent medical opinions of the June 2011 (with a December 2011 addendum) and October 2011 VA examiners more probative in this regard, in which opinions they explained that coronary artery disease does not cause hypertension and provided very thorough rationales for their conclusions. Also, the Board acknowledges the Veteran's contention that for years he had been instructed by a doctor to watch his diet in order to prevent the onset of diabetes, thereby indicating that he developed diabetes years prior to his diagnosis in 2005. In that regard, however, the Board notes again that the Veteran is not qualified to diagnosed diabetes or pre-diabetes, and there is no medical evidence of record indicating that the Veteran was developing diabetes prior to 2005. In summary, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for hypertension on a direct basis and as secondary to service-connected disability, and service connection may not be presumed; therefore, the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A §5107 (West 2002). ORDER The appeal of entitlement to service connection for rheumatoid arthritis, to include as due to Agent Orange exposure, is dismissed. Entitlement to service connection for hypertension, to include as due to Agent Orange exposure or as secondary to service-connected diabetes or coronary artery disease, is denied. REMAND The Veteran also claims that he has erectile dysfunction that was caused by exposure in Vietnam to Agent Orange, or as secondary to his service-connected diabetes mellitus or coronary artery disease. As explained above, based on the Veteran's service in Vietnam between January 1962 and January 1963, exposure to herbicides is presumed in this case. See 38 C.F.R. § 3.307(a)(6) (2013). Erectile dysfunction, however, is not one of the diseases listed in 38 C.F.R. § 3.309(e) for which presumptive service connection may be granted based on herbicide exposure. The Veteran is not, however, precluded from otherwise proving entitlement to service connection on a direct basis or as secondary to service-connected disability. See Combee v. Brown, 5 Vet. App. 248 (1993). The Veteran was provided with VA examinations in July 2009, June 2011 (with a December 2011 addendum), and October 2011, none of which examiners attributed the Veteran's erectile dysfunction to herbicide exposure or his service-connected diabetes mellitus or coronary artery disease. Subsequently, however, in January 2012, the Veteran submitted an article in support of his claim addressing the relationship between erectile dysfunction and coronary artery disease, which article notes in its conclusion that erectile dysfunction "is an independent predictor of severe coronary artery disease." Therefore, the Board finds that a remand is necessary so that a VA medical opinion may be obtained after a review of this newly associated medical journal article to clarify whether the Veteran's erectile dysfunction was caused or aggravated by his service-connected coronary artery disease. Accordingly, the case is REMANDED for the following action: 1. Obtain a VA medical opinion from the same VA examiner who performed the October 2011 VA examination to clarify whether it is at least as likely as not that the Veteran's erectile dysfunction: a) was caused by his service-connected coronary artery disease; or b) was aggravated by his service-connected coronary artery disease. The claims folder should be forwarded to the examiner for review, including the recently associated VA and private treatment records, as well as the medical journal article submitted by the Veteran. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. NOTE: the examiner must address the medical journal article submitted by the Veteran regarding the relationship between erectile dysfunction and coronary artery disease. 2. Then, readjudicate the Veteran's claim. If the claim remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran has been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs