Citation Nr: 1343330 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 09-19 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hypertension, to include as related to exposure to herbicides or secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1959 to June 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). The matter was previously before the Board in February 2011, April 2012 and May 2013, and was remanded for further development and adjudication. In its February 2011 remand, the Board found that the record reasonably raised the issue of service connection for a cardiovascular disease, including a heart disability and hypertension, as due to exposure to Agent Orange or other herbicide agents. Therefore, the issue of service connection for hypertension has been recharacterized on the front page of this decision to reflect this finding. As will be discussed, all of the actions previously sought by the Board through its prior request have been substantially completed as directed. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998); D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008); Dyment v. West, 13 Vet. App. 141 (1999). VA's duty to assist is met; thus, it is not prejudicial for the Board to proceed with appellate review. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In addition to the paper claims file, the Board has reviewed the record maintained in the Virtual VA and Veterans Benefits Management System (VBMS) electronic claims files associated with the Veteran's claim. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's currently diagnosed hypertension was not present until many years after active service, is not a disorder which VA has determined is associated with herbicide exposure, and is not caused or aggravated by his service-connected disabilities. CONCLUSION OF LAW Hypertension was not incurred in or caused by active service and is not proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). The duty to notify was satisfied in letters sent to the Veteran in July 2006, February 2011 and May 2011 regarding the type of evidence necessary to establish his claims. He was instructed how to establish service connection on both direct and secondary bases. The duty to assist has also been satisfied. The Veteran's service treatment records and post-service medical records are in the claims file and were reviewed in connection with his claim. The Veteran has provided various lay statements in support of his claim. He has been afforded VA examinations and accompanying addenda in connection with his claim in April 2011, May 2012 and June 2013. 38 C.F.R. § 3.159(c)(4). These examinations, cumulatively, are adequate for purposes of adjudication of the Veteran's claim as, together, they address all of his contentions regarding the nature and onset of his hypertension, and they contain all required examination findings, clear and sufficient reasoning for the diagnoses rendered, as well as nexus opinions addressing the various theories of entitlement upon which the claim may be granted. The Veteran has not identified any additional outstanding evidence in these matters that could be used to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Appellant in developing the facts pertinent to his claim. II. Service Connection The Veteran contends that his currently diagnosed hypertension is related to the stress and pain from combat-related wounds incurred during service. In particular, the Veteran notes a June 1966 incident in which he was injured by a land mine explosion in Vietnam. Further, he argues that the removal of the iliac crests from his hip bones - for which he was granted a noncompensable service connection in July 1986 - constitutes an amputation that, according to VA regulations, should allow for a presumption of service connection for cardiovascular disease. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases (including hypertension) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection for hypertension may be established based on a legal presumption by showing the condition manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307, 3.309(a). In order to warrant a 10 percent rating under the General Formula for Diseases of the Arteries and Veins, hypertensive vascular disease (hypertension and isolated systolic hypertension) must be manifested by diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, Diagnostic Code 7101. A disease associated with exposure to certain herbicide agents will be presumed to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service, unless there is affirmative evidence to establish that the disease is due to an intercurrent injury or disease. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.307(d)(1), 3.309(e). The Veteran's service records demonstrate that he served in the Republic of Vietnam, served in combat and has been awarded the Purple Heart Medal. His in-service exposure to herbicides has been conceded. See March 2010 rating decision. However, in order for presumptive service connection to be warranted based upon such exposure, the condition that the Veteran seeks service connection for must be recognized by VA as an herbicide-related disease. The medical evidence establishes that the Veteran is diagnosed with hypertension. However, the Board notes that hypertension is not among the enumerated diseases listed in 38 C.F.R. § 3.309(e) that VA has recognized are diseases related to exposure to herbicides. In fact, VA has specifically found that service connection is not warranted for hypertension based on exposure to herbicides. See Notice, 77 Fed. Reg. 47,924 (August 10, 2012). The Veteran was diagnosed with hypertension in an April 2011 VA examination, but the examiner specifically opined that the condition was not caused by or the result of exposure to herbicides. The examiner noted that the medical literature does not make or recognize any causal relationship between herbicide exposure and developing hypertension. Further, the examiner ijndicated that while blood pressure may be transiently elevated from exposure to herbicides, hypertension is not caused by such a stressor. Thus, the Board finds that the weight of the evidence is against a grant of service connection for hypertension based on exposure to herbicides. The Board must, nevertheless, also consider whether the evidence warrants service connection under any other theory of entitlement. The Veteran himself provides conflicting dates as to the onset of his hypertension. In his VA 21-526 Veteran's Application for Compensation and/or Pension dated March 2006, the Veteran reports that his hypertension disability first occurred on October 23, 1996. The Veteran stated during his April 2011 VA examination that he was first diagnosed with hypertension in 1987. And according to his May 2012 VA examination, the Veteran stated that he believed his hypertension started in 1966 after an in-service injury, he was "started on hypertension" medication one year after discharge in 1988, and the medication has since been increased. Service treatment records do not show any findings consistent with hypertension. A retirement physical examination conducted in April 1986 noted a blood pressure reading of 110/70, and was otherwise silent as to any signs, symptoms or diagnosis of hypertension. In an accompanying April 1986 Report of Medical History, the Veteran specifically denied a history of high or low blood pressure. A subsequent VA examination for disability evaluation conducted in May 1987 also did not indicate any signs of, treatment for or diagnosis of hypertension. In support of this claim, the Veteran submitted a private treatment record dated October 1996 which shows a blood pressure reading of 158/98 and that Calan, a medication used to treat high blood pressure, was prescribed. However, the first post-service evidence of a diagnosis of hypertension appears in VA treatment records dated in September 2004, nearly two decades after the Veteran's June 1986 separation from service. A private treatment record dated February 2006 shows the Veteran was diagnosed with essential hypertension NOS. The VA examiner in April 2011 opined that the Veteran's hypertension was not caused by or a result of clinical onset during service and was not related to any in-service disease, event or injury. The examiner explained that the Veteran's service treatment records are silent for a diagnosis of hypertension, and both VA and private treatment records document the diagnosis and treatment for hypertension years after discharge from service. The examiner further noted that while "blood pressure may be transiently elevated" from stressors such as pain, hypertension is not caused by such stressors. A second VA examiner in May 2012 concluded that the Veteran's diagnosis of essential hypertension was not caused by or a result of active duty service. In support of this conclusion, the examiner stated there was no evidence of a diagnosis of hypertension during active service. Further, the examiner stated that in-service injuries or stress can cause transient elevation of blood pressure but not the diagnosis of essential hypertension. A letter from the Veteran's private doctor dated August 2006 states the Veteran has been seen by him for chronic medical problems that include hypertension and that many of these conditions have existed since his military service. However, the doctor fails to state which of the listed conditions, which also include basal cell carcinoma, hyperlipidemia and coronary artery disease, he believes have existed since service. Further, he does not provide a rationale to support his explanation. Initially, the Board finds that presumptive service connection on the basis of a chronic disease manifesting to a compensable degree within one year after discharge from service is not warranted because the evidence fails to demonstrate that the Veteran's hypertension manifested within one year after he was discharged. The earliest evidence of record showing the Veteran was being treated for symptoms of hypertension was in an October 1996 private treatment record. Even if the Board were to treat this date as the earliest reported date of onset for hypertension, that date is still 10 years after discharge from service. Thus, presumptive service connection under §§ 3.307(a)(3) and 3.309(a) are not established. Furthermore, the Board finds that the evidence fails to demonstrate that the Veteran's hypertension was chronic in service or that there has been a continuity of symptomatology since service. As previously discussed, the service treatment records are silent for a diagnosis of hypertension in service, and the earliest evidence showing treatment for high blood pressure exists in an October 1996 private medical record. Consequently, the Board finds that service connection under § 3.303(b) is also not warranted. Finally, the Board finds that the evidence fails to demonstrate that there is a nexus relationship between the Veteran's current hypertension and his military service. Based upon the evidence, the Board finds that there is no evidence of an onset of hypertension in service, and the earliest documented onset of symptoms or treatment of hypertension occurred several years after his discharge from active military service. The Board finds the April 2011 and May 2012 VA examiners' opinions highly probative as they had the benefit of a review of all the records in the claims folder. Further, they provided clear explanations for their conclusions. In contrast, the private doctor's August 2006 letter does not specifically state whether he believes the Veteran's current hypertension has existed since active service and does not provide any rationale. The Board acknowledges that the Veteran is competent to testify as to observable symptoms, but finds that his opinion as to the cause of his hypertension simply cannot be accepted as competent evidence and is clearly outweighed by the medical evidence against the claim. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007). Further, the Veteran has provided inconsistent dates as to when he believes he was first diagnosed or began exhibiting symptoms of hypertension. As such, his statements are afforded no probative weight. As the competent and credible evidence indicates that the earliest date of onset of the Veteran's hypertension was in 2004, the Board finds that service connection on a direct basis has not been established. The Board will therefore proceed with review of the merits of the claim on a secondary basis. Service connection is provided for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). VA amended 38 C.F.R. § 3.310 to include additional requirements that there be medical evidence created prior to the claimed aggravation showing the baseline of the disability prior to aggravation. 38 C.F.R. § 3.310; 71 Fed. Reg. 52,744 -52,747 (Sept 7, 2006) (effective October 10, 2006). The Veteran's claim for service connection for hypertension was received prior to the change in the regulation, and the new version of the regulation imposes additional burdens and could have retroactive effects. Hence, the Board will apply the old version of the regulation. See Princess Cruises v. United States, 397 F.3d 1358 (Fed. Cir. 2005); cf. Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. 2008). As noted above, the record establishes that the Veteran is presently diagnosed with hypertension. He also suffers from several service-connected disabilities, notably coronary artery disease and iliac crest deformities. Although the record establishes that the Veteran has hypertension, the evidence does not demonstrate that the disability was caused or aggravated by any of his service-connected disabilities. There is no competent medical evidence in support of the claim and none of the Veteran's private or VA health care providers have identified a link. To the contrary, a VA examiner specifically opined in a June 2013 addendum VA opinion that the Veteran's diagnosed essential hypertension was not caused or permanently aggravated beyond the natural progression of the disease by his service-connected disabilities, to include iliac crest deformities or coronary artery disease. In support, the examiner stated that the medical literature reports no evidence of such a relationship. The Board has considered the Veteran's statements linking his hypertension to the injuries he sustained during active service, but as a lay person, he is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). The Board acknowledges that the Veteran is competent to testify as to observable symptoms, but finds that his opinion as to the cause of his hypertension simply cannot be accepted as competent evidence and is clearly outweighed by the medical opinion against the claim. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). Thus, the Board finds that the competent evidence of record weighs against the claim for service connection on a secondary basis. With regard to the Veteran's contention in his Form 9 substantive appeal that his service-connected iliac crest deformities should be considered an amputation, the Board is mindful of 38 C.F.R. § 3.310(c). Under this regulation, ischemic heart disease or other cardiovascular disease developed in a veteran who has a service-connected amputation of one lower extremity at or above the knee or service-connected amputations of both lower extremities at or above the ankles, shall be held to be the proximate result of the service-connected amputation or amputations. However, the Veteran has presented no evidence showing that either of his legs were amputated. As such, the Veteran cannot establish service connection on a secondary basis on this theory. In sum, the evidence of record shows that onset of the Veteran's hypertension occurred years after separation from active duty and cannot be granted on a direct or presumptive basis. The competent medical evidence does not establish that the Veteran's hypertension was incurred or aggravated secondary to his service-connected disabilities. Lastly, service connection is not warranted based on exposure to herbicides. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim and it is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for hypertension, to include as related to exposure to herbicides or secondary to service-connected disabilities, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs