Citation Nr: 1434603 Decision Date: 08/04/14 Archive Date: 08/08/14 DOCKET NO. 06-37 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for hypertension, to include as secondary to ischemic heart disease and, in the alternative, as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to January 1966. This matter is on appeal from a February 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This appeal was remanded by the Board in January 2010 further development and, after this development was completed, was denied in a May 2012 decision. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court) and, in a January 2013 memorandum decision, the Court vacated the Board's May 2012 decision and remanded the issue for additional development. In April 2014, the Board referred this case to a VA specialist in order to acquire an opinion addressing the Veteran's claim in accordance with the Court's instructions. That same month the VA specialist provided the requested opinion, and the Veteran was allowed an appropriate amount of time to respond to the VA specialist's comments. The documents for this appeal are contained in the Virtual VA paperless claims processing system as well as the Veterans Benefits Management System (VBMS). Accordingly, any future records generated regarding the Veteran's case should be incorporated into his electronic file. FINDINGS OF FACT 1. The Veteran served on active duty in the Republic of Vietnam and is presumed to have been exposed to herbicide agents such as Agent Orange. 2. Hypertension is not a disorder that is presumed related to herbicide exposure, was not manifest during service or for many years thereafter, and is unrelated to service or to a service-connected disability. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by active duty service nor may it be presumed to be related to active duty service or to a service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is claiming entitlement to service connection for hypertension, to include as secondary to his service-connected ischemic heart disease or, in the alternative, to exposure to toxic herbicides while serving in the Republic of Vietnam. At a hearing before a Decision Review Officer in June 2008, he recalled being told that the defoliant Agent Orange was being sprayed in his vicinity while he was in Vietnam, and that he could smell it. He also stated that his hypertension began in approximately 1967 or 1968. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). 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); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, such as hypertension, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a), which includes hypertension. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As it is the Veteran's primary contention that his hypertension is related to Agent Orange exposure, the Board addresses this aspect of the claim first. In general, a veteran who served on active duty in the Republic of Vietnam from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed to an herbicide agent containing dioxin or 2,4-dichlorophenoxyacetic acid. Exposure for such veterans typically involves exposure to herbicides such as Agent Orange. 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). Service connection may therefore be presumed for residuals of Agent Orange exposure by showing two elements. First, it must be shown that the Veteran was exposed to toxic herbicides such as Agent Orange. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Second, the Veteran must have been diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e) or a nexus between the currently diagnosed disability and service must otherwise be established. Brock v. Brown, 10 Vet. App. 155 (1997). As to the first element, the Veteran's personnel records indicate that he has service in the Republic of Vietnam from 1965 to 1966, which falls within the relevant time period specified in 38 C.F.R. § 3.307. Therefore, he is presumed to have been exposed to toxic herbicide agents such as Agent Orange. This is not in dispute. However, although his exposure to Agent Orange may be presumed, service connection is nonetheless not warranted, as hypertension is not a disorder that may be presumed related to Agent Orange exposure. Indeed, when it recently revised 38 C.F.R. § 3.309(e) to include ischemic heart disease, VA specifically determined that 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. 38 C.F.R. § 3.309(e), Note 3 (effective August 31, 2010). In other words, VA has made a determined effort to exclude hypertension as being a disability that enjoys the presumption of service connection due to herbicide exposure. Therefore, although the Board recognizes that the Veteran has service in the Republic of Vietnam and is thus presumed to have been exposed to toxic herbicides such as Agent Orange, hypertension is not one of the disorders that may be presumed related to such exposure under 38 C.F.R. §§ 3.307 and 3.309. Therefore, service connection is not warranted on this basis. Next, even though his primary assertion has been addressed above, the Veteran is not precluded from establishing service connection with proof of actual direct causation as due to active duty service. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994); Brock, 10 Vet. App. at 155. However, service connection is also not warranted on this basis. First, the service treatment records do not reflect complaints of, treatment for, or a diagnosis related to hypertension while in service. Significantly, at the Veteran's separation physical examination in January 1966, his blood pressure was measured at only 132/72 mm Hg. By comparison, hypertension for VA purposes is defined as a systolic pressure that is predominantly 140 mm Hg or greater with a diastolic pressure of less than 90 mm Hg. See VA Adjudication Procedure Manual, M21-1, Part III.iv.4.E.20.d (July 28, 2014), citing 38 C.F.R. § 4.401, Diagnostic Code 7101 (2013). Moreover, and more importantly, the post-service does not reflect symptoms related to hypertension for many years after the Veteran left active duty service. Indeed, the first occasion in the record where hypertension was shown for VA purposes was not until a medical treatment note from June 1989, although there have been some assertions that he was diagnosed as early as 1988. In either event, the Board emphasizes that this first indication of hypertension is still approximately 22 years after he left active duty. As such, a continuity of symptoms is not shown based on the clinical evidence. The Board notes that the Veteran has stated that he has had hypertension since shortly after leaving service. In this regard, he is not competent diagnose hypertension, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is "medical in nature." Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). Nevertheless, he is competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not historically accurate. In making this determination, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Specifically, the Board notes that the Veteran has submitted a number of claims for service connection since as early as 1968, but did not submit a claim for service connection for hypertension until 2005. The fact that the Veteran was aware of the VA benefits system, sought out a claim for compensation related to many other disorders, but made no reference to this problem weighs against his accuracy. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011)(Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, and cases in which there is evidence that is relevant either because it speaks directly to the issue or allows the Board as factfinder to draw a reasonable inference). Had the Veteran had hypertension, as he now claims, just after service, there seems to be no reason why the Veteran would not have identified this issue and filed a claim with the VA as he did with other problems just after service (the Veteran clearly knew how to file a claim with VA). The treatment records during service and post-service only support this finding, making it less likely than not (a less than 50% chance) that the Veteran has, as he contends, had this problem since about when he left service in January 1966, nearly 50 years ago. Based on all the evidence, the Board makes the following finding of fact: Continuity is not established based on the clinical evidence of record, the Veteran's statements, and a total review of the factual record as a whole. Next, service connection may also be granted when the evidence establishes a medical nexus between his current disorder and active duty service or, in the alternative, to another service connected disability. This is a point the Board has considered with great detail. However, the Board finds that the weight of the competent evidence does not attribute the Veteran's hypertension to active duty or to a service-connected disability. Specifically, in a November 2011 rating decision, the Veteran was service-connected for ischemic heart disease, and it is now his contention that his hypertension is a secondary result of this now service-connected disability. In this regard, the Board must note that this argument provides some limited evidence against the Veteran's own contention above: If, as the Veteran now contends, his hypertension was caused by his service-connected ischemic heart disease, and the Veteran was not found to have ischemic heart disease until decades after service, the argument that the ischemic heart disease caused his hypertension would seem to undermine his own argument that the hypertension has existed since shortly leaving service, before he had ischemic heart disease. The two contentions are not entirely consistent. In any event, in order to resolve this critical question, the Veteran's claim was forwarded to a VA specialist for consideration. After a review of the entire claims file, the specialist submitted a report in April 2014 where it was noted that hypertension is a "common condition" that affects a third of all adults, and many risk factors such as obesity, diabetes and age. The specialist also noted that the Veteran's hypertension has been difficult to control, but did not appear to worsen when he developed ischemic heart disease. Given this lack of change, the specialist concluded that it was less likely than not that his hypertension was caused or worsened by his ischemic heart disease, providing highly probative evidence that the service connected disability caused or aggravated the disability at issue. To the contrary, the specialist stated that it was more likely that the Veteran's hypertension increased his risk of ischemic heart disease, undermining the contention that the hypertension was aggravated by the ischemic heart disease. Based on this opinion, and in the absence of any clinical evidence to rebut the conclusions contained therein, service connection is not warranted on this basis. Next, while there currently no medical evidence directly linking the Veteran's hypertension to active duty service, and no treating physician has opined that such a relationship, the Veteran has also argued that additional development is required as to whether service connection is warranted based on his toxic herbicide exposure on a non-presumptive basis. In support, the Veteran's representative argues that there is "medical literature available that tends to link the development of hypertension with herbicide exposures through the same mechanism which results in diabetes." However, the Board finds that no further development is necessary in this regard. In addition to the fact that the Veteran has not provided any specific medical evidence in support of this theory of entitlement, VA has also specifically found that any evidence indicating such an association is outweighed by the other evidence that is against such an association and, based on a consideration of all available medical evidence, determined that a positive association between circulatory diseases and herbicide exposure does not exist. See 77 Fed. Reg. 47,924 (August 10, 2012). It is critical for the Veteran to understand that this issue has been fully researched in the determination of what disabilities should be part of the presumption and which disabilities should not by the VA over many decades. When considering this claim, the Board has also considered the statements made by the Veteran relating his hypertension to his active service. The Federal Circuit has held that "[l]ay 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, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of hypertension. See Jandreau, 492 F.3d at 1377, n.4. Because hypertension is not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's hypertension are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. VA Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice 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). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Indeed, the VCAA duty to notify was satisfied by way of letters sent to the Veteran that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letters informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. It also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records. While the RO determined that some of the Veteran's treatment records were unavailable, the Board is satisfied that a diligent effort was made to acquire them. Further, the Veteran submitted his own statements in support of his claim. There is absolutely no indications of additional pertinent records that VA could obtain that would be pertinent to this claim. An additional remand of this case would provide no benefit to the Veteran. A VA examination and opinion with respect to the issue on appeal were obtained in September and November 2011, and VA also acquired a nexus opinion from a VA specialist in April 2014. 38 C.F.R. § 3.159(c)(4). The Board finds that these opinions are collectively adequate to adjudicate the claim. The opinions are predicated on a full understanding of the Veteran's medical history, and provide a sufficient evidentiary basis for the claim to be adjudicated. 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); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Another medical opinion to address if herbicides has caused the Veteran's hypertension is simply not warranted under the Veteran Court's decision in McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this regard, the Federal Circuit has also addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service (as in this case, where the Veteran contends it is the result of herbicides) would not suffice to meet the standards, as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, as the only evidence that the Veteran's claimed disability is related to herbicide is, at best, the conclusory generalized lay statements of the Veteran and his representative, without medical foundation, which are unsupported by even speculative medical evidence. Accordingly, the Board finds that referral for another VA medical opinion is not warranted. Finally, it is noted that this appeal was remanded by the Board in January 2010 in order to comply with VBA Fast Letter 08-14, issued May 21, 2008, which addressed the possibility (at that time) that hypertension might be added to the list of disorders related to toxic herbicide exposure. As this Fast Letter is no longer in effect, there has been substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for hypertension, to include as secondary to ischemic heart disease and, in the alternative, as due to toxic herbicide exposure, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs