Citation Nr: 1338805 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 08-09 253 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for hypertension, to include as due to herbicide exposure, service-connected coronary artery disease (CAD), and/or service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified before the undersigned at the RO in November 2009. A transcript of the hearing is of record. In January 2010 and May 2011, the claim was remanded for further development and readjudication. The Appeals Management Center (AMC) in Washington, DC, continued the previous denial in a January 2013 supplemental statement of the case (SSOC). The Veteran's VA claims files have been returned to the Board for further appellate proceedings. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDING OF FACT Hypertension was not present until more than one year following the Veteran's discharge from service, is not etiologically related to service, and was not caused or permanently worsened by any service-connected disability. CONCLUSION OF LAW Hypertension was not incurred in active service, may not be presumed to have been so incurred, and was not proximately caused or aggravated by any service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the VCAA duty to notify was satisfied by a letters sent to the Veteran in July 2006 and May 2011 with regard to the claim of entitlement to service connection for hypertension. The letters addressed all of the notice elements and were sent before and after the initial unfavorable decision by the RO in January 2007. However, the Veteran's claim was then readjudicated by the AMC in the January 2013 SSOC. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). The record also reflects that service treatment records, service personnel records, records from the Social Security Administration (SSA), and private and VA treatment records have been obtained. The Veteran and his representative submitted multiple written statements discussing his contentions. The Veteran also testified at a hearing before the undersigned in November 2009. A VA examination was provided in June 2011 and an addendum VA medical opinion was obtained in January 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the June 2011 VA examination and the January 2013 VA medical opinion obtained in this case are adequate. In addition to reviewing the Veteran's pertinent history and claims file, the examiner provided a complete rationale for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate this claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after 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). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. In addition, certain chronic diseases, including cardiovascular-renal disease (including hypertension), may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C.A. §§ 1116; 38 C.F.R. § 3.307 (2013). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a) are met even if there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, diabetes mellitus, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lungs, bronchus, larynx, or trachea), AL amyloidosis, ischemic heart disease, Parkinson's disease, hairy cell leukemia and other chronic B-cell leukemias, and soft-tissue sarcomas. 38 C.F.R. § 3.309(e) (2013). Significantly, on October 13, 2009, in accordance with authority provided in 38 U.S.C.A. § 1116, the Secretary of VA announced his decision to establish presumptions of service connection, based upon exposure to herbicides within the Republic of Vietnam during the Vietnam era, for additional conditions, to include ischemic heart disease. The final rule was issued in August 2010 and became effective August 31, 2010. See 75 Reg. 53, 303 (Aug. 31, 2010). The amended 38 C.F.R. § 3.309(e) indicates that ischemic heart disease includes, but is not limited to, "acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary artery bypass surgery; and stable, unstable and Prinzmetal's angina." See 75 Reg. at 53, 216; 38 C.F.R. § 3.309(e). However, Note 3 provides that for purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. Regulations governing presumptive service connection for Agent Orange do not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (1994). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (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. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 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. However, 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 created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b) (2013). Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Analysis Service treatment records revealed normal cardiovascular findings. Service personnel records detailed that the Veteran's military occupational specialty (MOS) was listed as Truckmaster as well as reflected that he was stationed in the Republic of Vietnam for one year from April 1968 to April 1969 during his period of active service. In his June 2006 claim, the Veteran reported that his high blood pressure had its onset in October 2002. Post-service VA and private treatment records dated from 2002 to 2011 showed numerous cardiovascular findings, including elevated blood pressure and hypertension. During his November 2009 hearing, the Veteran asserted that he had hypertension related to CAD. In an October 2010 VA heart examination report, the examiner, noted a history of hypertension with a very active cardiac history and listed an impression of hypertension. In March 2011 statement, the Veteran's representative noted it was the Veteran's contention that his hypertension was secondary to his PTSD. In a June 2011 VA hypertension examination report, the examiner, a VA physician, discussed his review of the claims file. It was noted that the date of onset of the Veteran's hypertension was 1988. The Veteran reported that he was noted to have an elevated blood pressure during an employment examination and was placed on medication then. He indicated that his hypertension had usually been under good control since that time. The examiner noted a history of headache related to hypertension as well as hypertensive renal disease with mildly elevated serum creatinine. Blood pressure readings were listed as 177/90 mmHg, 180/100 mmHg, and 192/98 mmHg. The examiner diagnosed essential hypertension, opining that the disorder was less likely as not (less than 50/50 probability) caused by or a result of service-connected CAD or PTSD or in-service herbicide exposure and military service. In his cited rationale, the examiner highlighted that there was no evidence of hypertension in service. It was further noted that the Veteran's hypertension began prior to his diagnoses for CAD and PTSD, which would not cause essential hypertension. The examiner commented that no medical evidence was noted that connected the development of hypertension to herbicides. In a January 2013 VA addendum medical opinion, the same examiner who conducted the June 2011 VA examination indicated that he had again reviewed the Veteran's claims file. He then opined that there was no medical evidence that the Veteran's hypertension was aggravated by his CAD or his PTSD. In an October 2013 written brief presentation, the Veteran's representative cited to two internet articles from 2007 that he asserted showed a correlation between herbicide exposure and hypertension. It was indicated that both of the internet articles showed that VA participated in the studies and all data was compiled within VA. See www.webmd.com/hypertensionhigh-blood-pressure/news/20070727/agent-orange-high-bp-may-belinked; http://abcnews.go.com/Health/Healthday/story?id=4508092. He then concluded that the Veteran was entitled to service connection for hypertension in light of the Veteran's current hypertension diagnosis as well as the cited medical treatises supporting a linkage between the current diagnosed condition and the Veteran's herbicidal exposure in Vietnam while on active duty. As an initial matter, the Veteran has argued that his hypertension is a direct result of his active service, to include his presumed exposure to herbicides during his service in Vietnam. Service treatment records are devoid of any complaints, treatment or diagnosis of hypertension in service. There is likewise no evidence of a diagnosis of hypertension until many years thereafter. Post-service evidence of record showed treatment dated from 2002 to 2011 for hypertension. During the June 2011 VA examination, the Veteran reported that his hypertension was diagnosed and he began to take medication to control it in 1988. Based on the foregoing, the Board has determined that hypertension did not have its onset in or within one year of service discharge, which would trigger a presumption of service connection. As to the question of service connection being based on the presumption of exposure to herbicide agents, service personnel records reflect that the Veteran was stationed in the Republic of Vietnam during active service from April 1968 to April 1969. He is presumed to have been exposed to herbicide agents (Agent Orange). However, hypertension is not among the list of diseases enumerated under 38 C.F.R. § 3.309(3). The contrary is in fact shown. As noted, the recently revised 38 C.F.R. § 3.309(e) explicitly excludes hypertension from being among the diseases presumed to be related to herbicide exposure. The presumption of service connection for hypertension due to herbicide exposure is not warranted. Such is by the direction of the Secretary. The Board lacks the power and capacity to find the contrary. However, the regulations governing presumptive service connection for Agent Orange do not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (1994). Accordingly, the Board will proceed to evaluate the Veteran's claim under the provisions governing direct service connection, 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303. As noted above, post-service medical evidence of record clearly showed findings of high blood pressure and diagnoses of essential hypertension. The Veteran's service treatment records revealed normal cardiovascular findings and he does not claim to have suffered an in-service injury to his heart or to have developed any chronic hypertension in service. However, as the Veteran served in Vietnam, his exposure to herbicides is presumed and is characterized an incurrence of an in-service injury. 38 U.S.C.A. § 1116(f). In this case, evidence of record does not show any relationship between the Veteran's claimed hypertension and events during his military service, to include presumed herbicide exposure. In fact, the June 2011 VA examiner specifically indicated that essential hypertension was less likely as not (less than 50/50 probability) caused by or a result of in-service herbicide exposure and military service. The examiner provided a complete rationale for his stated opinions, citing to his detailed review of the evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). In contrast, the outdated internet articles from 2007 discussing herbicides and hypertension referenced by the Veteran's representative in his October 2013 written brief presentation did not specifically relate to the facts and circumstances surrounding the Veteran's particular case and are found to be of little probative value. The Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Sacks v. West, 11 Vet. App. 314 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998) (medical treatise evidence discussed generic relationships with a degree of certainty to establish a plausible causality of nexus); Mattern v. West, 12 Vet. App. 222, 228 (1999). Moreover, and of significant import, the Board notes that the recent revision to 38 C.F.R. § 3.309(e) considered the question of whether there was an etiological link between herbicide exposure and hypertension. In determining that there was no such link, VA referenced, discussed, and weighed the findings of Institute of Medicine (IOM) studies that pertained to this question. 75 Fed. Reg. 53204 (2010). VA indicated that its negative determination was based, in part, on the finding that while herbicide agents had been found to affect the muscle of the heart (e.g., ischemic heart disease), the IOM study had concluded that hypertension is not a condition that affects the muscles of the heart. As such, the Board finds that the most persuasive medical evidence that specifically addresses the question of whether the Veteran's claimed hypertension is etiologically or causally related to events in service, to include presumed herbicide exposure, weighs against the claim. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). Turning to the Veteran's other assertions, the Board will now consider whether entitlement to service connection for hypertension is warranted on a secondary basis. Here, medical evidence of record demonstrates that the Veteran is currently diagnosed with hypertension. It is also undisputed that the Veteran is currently service-connected for CAD and PTSD. However, evidence of record has not shown a nexus between the service-connected CAD and PTSD and the Veteran's current hypertension. Specifically, the June 2011 and January 2013 VA examiners concluded that Veteran's hypertension was not caused by or aggravated by his service-connected CAD or PTSD. The Veteran has not provided any competent medical opinion, despite be given the opportunity to do so, that rebuts these findings. As such, the Board finds that the most persuasive medical evidence that specifically addresses the question of whether the Veteran's service-connected CAD and/or PTSD caused or aggravated his claimed hypertension weighs against the claim. The Board acknowledges the contentions of the Veteran and his representative that his current hypertension was related to events in service as well as caused or aggravated by his service-connected CAD and/or PTSD. However, the Board notes that they do not possess the expertise required to determine whether his present hypertension is causally related to active service or caused or permanently worsened by his service-connected CAD and/or PTSD. In any event, even assuming that the lay statements of the Veteran and other individuals are competent evidence of an etiological relationship between the Veteran's present hypertension and events during his active service or the Veteran's service-connected CAD and/or PTSD, those lay statements are clearly of less probative value than the medical evidence indicating that his current hypertension is unrelated to events during active service and is not caused or aggravated by the Veteran's service-connected CAD and/or PTSD. Accordingly, the Board must conclude that entitlement to service connection for hypertension is not warranted. In arriving at the decision to deny the 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. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for hypertension, to include as due to herbicide exposure, service-connected CAD, and/or service-connected PTSD, is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs