Citation Nr: 1413402 Decision Date: 03/28/14 Archive Date: 04/08/14 DOCKET NO. 07-09 868 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for hypertension, to include as secondary to diabetes and as due to Agent Orange exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1961 to March 1965. He also had subsequent Reserve service from March 1965 to December 2004, including periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This matter initially came before the Board of Veterans' Appeals (Board) from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In that decision, the RO, among other things, denied entitlement to service connection for hypertension. In November 2008, the Veteran testified at a videoconference hearing before the undersigned; a transcript of that hearing is of record. In December 2009, August 2011, and January 2013, the Board remanded this and other claims to the RO, via the Appeals Management Center (AMC). Other claims addressed in those remands have since been resolved and the claim for entitlement to service connection for hypertension is the only remaining issue before the Board. For the reasons indicated below, the RO/AMC has complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. Hypertension did not have its onset during active duty service and is not related thereto. 2. Hypertension was not compensably disabling within one year of separation from active duty or for many years thereafter. 3. Hypertension was not caused or aggravated by any period of active duty for training. 4. Hypertension is not caused or aggravated by diabetes. 5. Hypertension is not due to Agent Orange exposure. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by service, to include any period of active duty for training, and it may not be presumed to have been incurred therein, either as a chronic disease or as a disease associated with herbicide exposure. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2013). 2. Hypertension is not proximately due to, the result of, or aggravated by, service connected disease or injury. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in February 2005 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The case was most recently readjudicated in December 2013. To the extent VCAA notice has not specifically addressed each theory of entitlement advanced by the Veteran or raised by the evidence of record, such error did not prejudice the claimant because his statements and those of his representative during the lengthy course of the appeal reflect that he had actual knowledge of what was needed to establish entitlement under each theory discussed below. See George-Harvey v. Nicholson, 21 Vet. App. 334, 339 (2007). VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. As discussed below, pursuant to Board remands, an opinion from a VA physician was obtained that is adequate and probative with regard to each theory addressed below. In addition, all records relating to the Veteran's periods of active duty for training and inactive duty training have been obtained. These include pay records and records of the "points" accumulated by the Veteran during his periods of active duty for training and inactive duty training. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, during the November 2008 Board hearing, the undersigned explained the issues on appeal, suggested the submission of evidence that may have been overlooked, and left the claims file open for 45 days in order to allow the Veteran time to submit additional evidence. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The Board will therefore proceed to the merits of the appeal. Analysis The Veteran has advanced multiple theories of entitlement to service connection for hypertension. He has claimed that it was incurred during a period of active duty for training or inactive duty training, that it is secondary to diabetes, and that it is due to Agent Orange exposure. The Board will also address whether hypertension is related to the Veteran's period of active duty service or manifested during the presumptive period for chronic diseases, of which hypertension is one, or whether service connection is warranted on a continuity of symptomatology basis. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "Active military service" is defined by VA law and regulations. Active military, naval, or air service includes active duty, any period of active duty for training during which the individual concerned was disabled from a disease or injury incurred in the line of duty. See 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty training during which the individual concerned was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing active duty for training or from injury incurred or aggravated while performing inactive duty training. As this case involves hypertension, the Board will consider whether this disease, with which the Veteran has been diagnosed is related to a period of active duty for training. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As hypertension is a chronic disease, 38 C.F.R. § 3.303(b) is potentially applicable in this case. Consideration of continuity of symptomatology is required only where a condition noted during service or in the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). In addition, for veterans with 90 days or more of active service during a war period or after December 31, 1946, the chronic diseases listed in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a), including hypertension, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). As discussed below, however, to the extent that he claims entitlement to service connection on a direct incurrence basis, the Veteran's claim is that hypertension is related to or was aggravated by a period of active duty for training. The presumption of service connection for chronic diseases does not apply to claims based on periods of active duty for training. See Smith v. Shinseki, 24 Vet. App. 40 (2010) ("a claimant whose claim is based on a period of active duty for training can never be entitled to the presumption of service connection [for chronic diseases under 38 U.S.C.A. § 1112]"). VA laws and regulations provide that, if a veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.309(e). A veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to Agent Orange. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). As the Veteran served in Vietnam, he is presumed to have been exposed to Agent Orange. Hypertension is not, however, on the list of diseases associated with herbicide exposure and Note 3 to 38 C.F.R. § 3.309(e) provides that ischemic heart disease, which is on the list of such diseases, does not include hypertension. Although the Veteran is therefore not entitled to service connection on a presumptive basis under these provisions, he may nevertheless show that his herbicide exposure actually caused his hypertension. See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). The Veteran does not claim, and the evidence does not reflect, that his hypertension is related to his period of regular active duty service between 1961 and 1965. There is no evidence of hypertension or high blood pressure in the service treatment records or for many years thereafter, and subsequent medical and lay evidence reflect that high blood pressure did not manifest and hypertension was not diagnosed until many years after service. For example, a February 2001 VA treatment note indicated a history of hypertension for eight years and the Veteran indicated at the September 2010 VA examination that he had hypertension for the past twenty to twenty five years, and that he did not have a blood pressure issue during his 1961 to 1965 active duty service. There is therefore no basis for a finding of entitlement to service connection for hypertension based on onset in service or continuity of symptomatology. The Board found the September 2010 VA examination inadequate in February 2009, but the inadequacy was based on the fact that the examiner did not address the Veteran's periods of active duty for training, and not any deficiency in the recording of the Veteran's statements or any indication of a relationship between hypertension and the 1961 and 1965 period of service. As there is no evidence of the onset of hypertension during the 1961 to 1965 period of active duty service or for many years thereafter, and no indication that hypertension is or may be associated with this period of active duty service, entitlement to service connection for hypertension is not warranted on a direct incurrence or continuity of symptomatology basis relating to the Veteran's 1961 to 1965 period of active duty service. The Board also found the March 2012 VA examination inadequate because it did not address whether the Veteran's hypertension was causally related to or aggravated by his service connected diabetes. The Board will therefore consider neither the March 2010 nor March 2012 VA examinations in addressing the other theories of entitlement. In its January 2013 remand, the Board instructed that a new VA examination be conducted and that an opinion be offered as to whether it was at least as likely as not that the Veteran's hypertension was related to service, to include presumed exposure to Agent Orange, whether it was at least as likely as not that the hypertension was caused or aggravated by diabetes. The Board also instructed that the RO ensure that the information be obtained relating to the specific dates of active duty for training and inactive duty training between March 1965 and September 1994, to include pay records. The Board finds that the RO/AMC complied with the Board's remand instructions. The RO/AMC obtained the pay records which, along with the documents containing information on retirement points, identify the Veteran's periods of active duty for training. In addition, although a November 2013 VA examination report did not contain a relevant medical opinion, there is a December 2013 medical opinion by a VA physician that was adequate and complied with the Board's remand instructions for the reasons stated below. In the December 2013 opinion, the VA physician gave a detailed list of each relevant examination report and treatment note, beginning with the August 1961 enlistment examination and including May 1971, May 1975, January 1977, September 1978, October 1982, January 1987, March 1989, March 1991, November 1992, December 1992, March 1993, July 1995, February 2000, and October 2004 examination reports and treatment notes from the period of the Veteran's Reserve service. The December 2013 physician opined that it was less likely than not that hypertension was incurred in service or caused or aggravated by in-service injury, disease, or event, including presumed exposure to Agent Orange. In his rationale, the physician indicated that the Veteran entered service with normal blood pressure in 1961 and left service in March 1965 with normal blood pressure. He noted that the Veteran had been diagnosed and been treated for high blood pressure by approximately 1989 and that there was no indication in the service treatment records, to include the need for additional medications, evidence of chronic renal disease, or left ventricular hypertrophy. The examiner also found no evidence that the Veteran's high blood pressure worsened due to active duty for training from July 9, 2000 to July 22, 2000. He referenced a study Veterans and Agent Orange: Update 2010 (2011), 10 Cardiovascular and Metabolic Effects, which placed a relationship between hypertension and Agent Orange exposure in the "limited or suggestive" category, and found that this did not indicate a causal relationship. He referenced specific language from the study. The December 2013 physician also opined that hypertension was less likely than not proximately due to, the result of, or aggravated by, the Veteran's service connected diabetes. In his rationale, he noted a medical textbook that indicated that individuals with diabetes had a greater likelihood of having hypertension but interpreted the textbook as indicating that "hypertension is a risk factor for diabetes and not the other way around." The physician noted that the Veteran was diagnosed with diabetes only in the past few years, long after his diagnosis of hypertension, and which was not associated with evidence of renal sufficiency, as indicated by laboratory test results. The examiner found that this was significant because hypertension can be caused or aggravated by diabetes in the setting of chronic renal disease with renal insufficiency. The examiner quoted from a medical text indicating that hypertension is an almost universal consequence of impaired renal function. The physician quoted from the medical literature that he cited. The above reflects that the December 2013 VA physician offered an opinion as to each theory of entitlement and explained the reasons for his conclusions based on an accurate characterization of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). While he did not specifically address each period of active duty for training, the context of the report, including the listing of all of the medical records and examinations during the Veteran's Reserve service, reflects that the physician found that hypertension was not incurred in or aggravated by any specific period of active duty for training. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Moreover, the physician gave a thorough explanation as to why hypertension was not caused or aggravated by diabetes or due to herbicide exposure, and supported his conclusions with citation to relevant medical literature. The Board therefore finds that the opinion is of significant probative weight as to each theory of entitlement advanced by the Veteran. The only other evidence on these questions consists of the statements of the Veteran and his representative. It does not appear, however, that these lay witnesses are competent to opine on the complex question of whether hypertension was incurred in or aggravated by a specific period of active duty for training, caused or aggravated by diabetes, or due to Agent Orange exposure, questions that relate to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); 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); Jandreau, 492 F.3d at 1377, n.4 ("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"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). To the extent that they are competent, the Board finds the specific, reasoned opinion of the VA physician in December 2013 to be of greater probative weight than the more general lay assertions of the Veteran and his representative. For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for hypertension on a direct, presumptive, and secondary basis, to include all periods of active duty for training and exposure to Agent Orange. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for hypertension, to include as secondary to diabetes and as due to Agent Orange exposure, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs