Citation Nr: 1746167 Decision Date: 10/17/17 Archive Date: 10/31/17 DOCKET NO. 13-16 341 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for transient ischemic attacks, claimed as mini-strokes or blackouts. 3. Entitlement to service connection for gastrointestinal ulcers/gastroenteritis. 4. Entitlement to service connection for an enlarged prostate. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Santiago, Counsel INTRODUCTION The Veteran served on active duty from November 1956 to October 1986, including service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In that rating decision, the RO confirmed and continued an October 2006 service connection denial for hypertension, transient ischemic attacks (mini-strokes or blackouts), and a seizure disorder. In September 2014, the Board reopened and remanded these three issues for additional development and also remanded the issues of service connection for gastrointestinal ulcers/gastroenteritis and an enlarged prostate. At that time, the Board also denied service connection for high cholesterol. In a November 2016 rating decision, service connection for chronic small vessel brain ischemia (claimed as a seizure disorder and epilepsy) was granted, and such issue is no longer before the Board because the benefit sought was granted in full. As further discussed below, this chronic small vessel brain ischemia is more appropriately considered with the claimed transient ischemic attacks and mini-strokes. In April 2017, the Board requested a medical expert opinion from the Veterans Health Administration (VHA) pursuant to 38 C.F.R. § 20.901, which was received in May 2017. The Veteran was furnished a copy of such opinion in July 2017 with a notification letter informing him that he had 60 days from the date of the letter to review the medical opinion and send VA any additional evidence or argument. See 38 C.F.R. § 20.903. The Veteran submitted additional evidence (treatment records received in August 2017) and waived initial RO consideration of this evidence in a November 2016 statement. See 38 C.F.R. § 20.1304(c). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). FINDINGS OF FACT 1. The Veteran's current hypertension not related to service. 2. The Veteran's transient ischemic attacks, claimed as mini-strokes or blackouts, are due to service-connected disability. 3. The Veteran's current gastrointestinal condition is not related to service. 4. The Veteran's current enlarged prostate is not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2016). 2. The criteria for service connection for transient ischemic attacks, claimed as mini-strokes or blackouts, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2016). 3. The criteria for service connection for a gastrointestinal condition have not been met. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). 4. The criteria for service connection for an enlarged prostate have not been met. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. "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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic diseases, including hypertension, may be presumed to have been incurred 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; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Additionally, service connection for certain diseases, may be granted based on presumed exposure to certain herbicide agents such as Agent Orange, even though there is no record of such disease during service. None of the conditions for which the Veteran is claiming service connection in the instant appeal is among the listed diseases subject to presumptive service connection on the basis of Agent Orange exposure. See 38 C.F.R. § 3.309(e). Presumed exposure to an herbicide agent applies for a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam or other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. The Veteran had the requisite service. Hypertension The Veteran contends that his hypertension is related to service, to include in-service Agent Orange exposure. Alternatively, in a March 2015 Veteran statement, he contends that his hypertension is related to service on a secondary basis due to his service-connected diabetes mellitus. Post-service VA and private treatment records show that the Veteran has hypertension. Thus, the Veteran has the claimed current disability. However, the Veteran's service treatment records (STRs) are negative for a diagnosis of hypertension. The Veteran was afforded a VA examination in October 2006, in connection with his service connection original claim that the RO denied in the October 2006 rating decision. The October 2006 examiner reported a diagnosis of essential hypertension, which was diagnosed in the early 1990s. The examiner opined that the essential hypertension is unrelated to the Veteran's diabetes because there was no evidence of renal artery stenosis or nephropathy. In substantial compliance with the Board's September 2014 remand directives, the Veteran was also afforded VA examinations in November 2014 and October 2016. The November 2014 examiner reported a diagnosis of hypertension and provided a negative nexus opinion. The examiner explained that the Veteran's hypertension is not related to his presumed herbicide agent exposure and that current medical literature does not support a nexus. The October 2016 examiner provided an addendum opinion and reported that the Veteran's hypertension is less likely as not caused by, a result of, or incurred in service because STRs are silent for a diagnosis of hypertension and because it was not diagnosed within year of separation from service. Furthermore, the examiner opined that the hypertension is less likely as not caused by or a result of presumed exposure to an herbicide agent such as Agent Orange because hypertension is not a presumptive condition. Because none of these VA opinions directly addressed the National Academy of Sciences (NAS) Institute of Medicine's Veterans and Agent Orange: Update 2010, which concluded that there is limited or suggestive evidence of an association between exposure to Agent Orange and hypertension, the Board obtained the May 2017 VHA opinion. The VHA opinion was provided by Dr. J.B., a physician Board-certified in Internal Medicine. Dr. J.B. reviewed the Veteran's claims file before opining that his hypertension is less likely than not related to his service, to include presumed exposure to herbicide agents. In reaching this conclusion, Dr. J.B. specifically considered the NAS 2010 Update, stating that occupational and environmental studies failed to establish a positive association between herbicide exposure and hypertension. Additionally, Dr. J.B. opined that the Veteran's essential hypertension is less likely than not proximately due to, the result of, or caused by his service-connected diabetes. Dr. J.B. explained that the exact etiology of essential hypertension remains unclear and that there is no strong scientific evidence which establishes a positive association between diabetes and essential hypertension. In providing this negative nexus opinion, Dr. J.B. considered that the Veteran's records showing he was diagnosed with essential hypertension and borderline diabetes type II in the early 1990s. The Board notes that, according to Dorland's Illustrated Medical Dictionary 896 (32d ed. 2012), essential hypertension is "hypertension occurring without discoverable organic cause . . . ." Such definition is consistent with Dr. J.B.'s explanation that there is no exact etiology of the Veteran's essential hypertension. The Board finds that any determination as to the nature, onset and etiology of the Veteran's hypertension is medical in nature. See Jandreau v. Nicholson, 492 F.3d 1372, 1977 (Fed. Cir. 2007). Thus, the Veteran, as a layperson, is not competent to offer a medical opinion as to the cause of such hypertension because he has not demonstrated that he possesses the requisite specialized knowledge. Such an opinion requires medical expertise in this case. Despite his contention regarding exposure to herbicide agents in service, the Veteran has not submitted persuasive evidence showing that this exposure caused his hypertension. As stated above, hypertension is not a disease included in the list of diseases associated with herbicide agent exposure for which presumptive service connection may be granted. See 38 C.F.R. § 3.309(e). A veteran bears the evidentiary burden to establish all material elements of a claim. See 38 U.S.C.A. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). Unlike many areas of law, the claimant in the VA benefits system, however, has the burden of persuasion only to an equipoise standard or an "equality of the evidence" standard with the help of VA in developing the claim. See Skoczen v. Shinseki, 564 F.3d 1319, 1324 (Fed. Cir. 2009) (citing 38 U.S.C.A. § 5107(b)). However, the Veteran's opinion regarding the etiology of his hypertension is not competent evidence and is afforded no probative weight. Moreover, the VA examiners and the VHA expert, considered as a whole, specifically considered the Veteran's contended theories and medical history before concluding that his hypertension is not related to service or to his service-connected diabetes. Thus, the Board affords these opinions great probative weight and finds them persuasive regarding the nexus element, on which the appeal of this issue turns. The nexus element has not been substantiated here. Furthermore, the evidence does not show that the Veteran's hypertension manifested to a compensable degree within one year of service. Instead, the medical evidence first shows such a manifestation approximately four years after service. The Board acknowledges the Veteran's representative's recent contention in a September 2017 statement asserting an aggravation theory regarding service connection for hypertension. However, the Board finds that such a bald assertion is insufficient to trigger VA's duty to provide an examination or opinion on the matter. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); cf. El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Transient Ischemic Attacks In a May 2014 statement, the Veteran contends that he has mini-strokes (diagnosed in 2011) due to Agent Orange exposure. The Veteran's STRs are negative for transient ischemic attacks or mini-strokes or blackouts. Post-service VA records show emergency treatment in September 1990 for complaints of black out spells. It was noted that the Veteran was diabetic with increased blood pressure. An October 2006 VA examination report, completed in connection with the Veteran's original service connection claim, shows that the Veteran reported a loss of consciousness in 1990 with a similar episode in 2005 with no diagnosis or etiology being reported other than a possible psychotic event. The Veteran was afforded VA examinations in November 2014 and October 2016 with an addendum opinion in November 2016. The November 2014 examiner reported that there is insufficient evidence to warrant or confirm a diagnosis of an acute or chronic stroke, mini-stroke, or transient ischemic attacks or residuals. However, the October 2016 examiner reported a diagnosis of chronic small vessel ischemia of the brain, and in a November 2016 addendum opinion, this examiner explained that a risk factor for such condition is diabetes. In the November 2016 opinion, the examiner stated that the chronic small vessel ischemia of the brain is not directly related to service, to include Agent Orange exposure, but diabetes is a recognized risk factor for such ischemia. The examiner clearly reported that this ischemia was claimed as transient ischemic attacks and mini-strokes. The examiner also stated that it is not possible to determine the precise percentage contributed by the Veteran's diabetes and his other risk factors, including hypertension and hyperlipidemia, because there is no method for determining this information. Given the November 2016 opinion concerning chronic small vessel ischemia of the brain, the Board finds that the evidence is at least in relative equipoise regarding whether such condition was caused by his service-connected diabetes. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that his chronic small vessel ischemia, claimed as transient ischemic attacks and mini-strokes, was caused by the service-connected diabetes, and service connection for such ischemia is therefore warranted on a secondary basis. See 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Gastrointestinal Ulcers/Gastroenteritis In his May 2014 statement, the Veteran contends that he was diagnosed with gastrointestinal ulcers in 1962, and such condition is due to Agent Orange exposure. Review of the Veteran's STRs reveals the following gastrointestinal-related records: November 13, 1962, complaints of stomach trouble and diarrhea with the impression of enteritis of unknown etiology; May 16, 1963 complaints of stomach pain; November 23, 1966, treatment for gastroenteritis, which was noted to be improving on the following day. Additionally, an August 9, 1962, re-enlistment exam with a report of medical history show that the Veteran indicated that he had no stomach, liver, or intestinal trouble. Similarly, the Veteran's September 1986 separation exam and report of medical history are negative for any gastrointestinal ulcer or gastroenteritis notes. The Veteran was afforded VA examinations in April 2010, November 2014, and October 2016. While noting that there was a 2007 diagnosis of gastrointestinal ulcers, the April 2010 examiner reported a diagnosis of acute gastroenteritis in service that resolved without residuals. The November 2014 examiner opined that gastroenteritis or ulcers are not related to the Veteran's presumed herbicide agent exposure. Similarly, the October 2016 examiner reported a diagnosis of gastritis/diverticulosis (claimed as ulcers/gastroenteritis) and opined that it is less likely than not that such diagnosis is caused by or a result of gastritis or gastroenteritis in service. This examiner explained that any such episodes during service were acute conditions, which resolved without any residuals, as reflected at the Veteran's separation exam and because the Veteran's current chronic gastritis and diverticulosis were diagnosed in 2007 many years after the Veteran's separation from service in 1986. Additionally, the October 2016 examiner reported that the Veteran's chronic gastritis/diverticulosis is not related to the Veteran's presumed exposure to Agent Orange because such condition is not one of the presumptive conditions. The Board finds that any determination as to the nature and etiology of the claimed gastrointestinal condition is medical in nature. See Jandreau, 492 F.3d at 1977. Thus, the Veteran, as a layperson, is not competent to offer a medical opinion as to the cause of such condition because he has not demonstrated that he possesses the requisite specialized knowledge. Such an opinion requires medical expertise in this case. Despite his contention regarding presumed in-service diagnosis and Agent Orange exposure, the Veteran has not submitted persuasive evidence showing direct service connection or that herbicide agent exposure caused any current gastrointestinal condition. As explained previously, a veteran bears the evidentiary burden to establish all material elements of a claim. See 38 U.S.C.A. § 5107(a); Fagan, 573 F.3d at 1287-88. However, the Veteran's opinion regarding the etiology of any gastrointestinal condition that he experiences is not competent evidence and is afforded no probative weight. Moreover, all of the competent medical opinions of record fail to provide a positive nexus, even after considering the Veteran's medical history, to include review of his STRs, and the theories of direct service connection and Agent Orange exposure. Thus, the Board affords such opinions, as a whole, great probative weight and finds them persuasive regarding the nexus element, on which the appeal of this issue turns. The nexus element has not been substantiated here and service connection is not warranted. Enlarged Prostate In his April 2009 claim, the Veteran contends that he has an enlarged prostate that is related to service. However, the Veteran's STRs are negative for prostate problems. The Veteran was afforded VA examinations in November 2014 and October 2016. The November 2014 examiner opined that the Veteran's benign prostate enlargement is not related to his presumed herbicide agent exposure and explained that current medical literature does not support a nexus. Similarly, the October 2016 examiner reported a diagnosis of benign prostatic hypertrophy and provided a negative nexus opinion. This examiner explained that the Veteran's benign prostatic hypertrophy (claimed as enlarged prostate) is less likely as not caused by, a result of, or incurred in service because STRs are silent for this condition, and it is not a presumptive condition. While prostate cancer is listed in 38 C.F.R. § 3.309(e), non-malignant prostate enlargement is not. The Board finds that any determination as to the nature and etiology of the claimed prostate enlargement is medical in nature. See Jandreau, 492 F.3d at 1977. Thus, the Veteran, as a layperson, is not competent to offer a medical opinion as to the cause of such condition because he has not demonstrated that he possesses the requisite specialized knowledge. Such an opinion requires medical expertise in this case. Despite his contention regarding presumed in-service Agent Orange exposure, the Veteran has not submitted persuasive evidence showing that such exposure caused any current prostate enlargement. As explained previously, a veteran bears the evidentiary burden to establish all material elements of a claim. See 38 U.S.C.A. § 5107(a); Fagan, 573 F.3d at 1287-88. However, the Veteran's opinion regarding the etiology of any current prostate condition is not competent evidence and is afforded no probative weight. Moreover, the competent medical opinions of record fail to provide a positive nexus, even after considering the Veteran's medical history, to include review of his STRs, and the theory of Agent Orange exposure. Thus, the Board affords such opinions, taken as a whole, great probative weight and finds them persuasive regarding the nexus element, on which the appeal of this issue turns. The nexus element has not been substantiated here. Accordingly, service connection is not warranted. Conclusion In sum, the Board concludes that chronic small vessel ischemia, claimed as transient ischemic attacks and mini-strokes, was caused by the service-connected diabetes, and service connection for such ischemia is therefore warranted on a secondary basis. However, the Board must conclude that the preponderance of the evidence is against the other three claims on appeal discussed above, and the benefit-of-the-doubt doctrine is not applicable; therefore, despite any current diagnoses, service connection is not warranted for hypertension, gastrointestinal ulcers/gastroenteritis, or an enlarged prostate. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for hypertension is denied. Service connection for chronic small vessel ischemia in brain, claimed as transient ischemic attacks or mini-strokes or blackouts, as secondary to service-connected diabetes mellitus, is granted. Service connection for gastrointestinal ulcers/gastroenteritis is denied. Service connection for an enlarged prostate is denied. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs