Citation Nr: 1746957 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 11-28 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II, and/or as due to exposure to herbicide agents. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Clark, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1963 to December 1965, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2014, the Board remanded the appeal for additional development. Thereafter, the Board determined that further medical inquiry was necessary to decide the claim and sought a medical expert opinion from the Veterans Health Administration (VHA) pursuant to VHA Directive 1602-01 in May 2017, and such opinion was obtained in July 2017. Later that month, the Veteran and his representative were provided with a copy of the opinion and afforded an opportunity to submit additional evidence and/or argument. In September 2017, the Veteran's representative submitted additional argument on his behalf. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT Hypertension is not shown to be causally or etiologically related to any disease, injury, or incident during service, did not manifest within one year of service discharge, and is not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of facts 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); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In this regard, the Board finds that VA has satisfied its duties to notify and assist the Veteran at every stage in this case such that no prejudice results to him in the adjudication of his appeal herein. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.103, 3.156(a), 3.159, 3.326(a) (2016); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). While the Veteran's representative argued that the Board failed in its duty to assist by not obtaining a medical opinion addressing whether the Veteran's hypertension was a result of in-service herbicide exposure, which will be discussed in detail herein, neither the Veteran nor his representative has raised any other issues with the duty to notify or assist in connection with the instant appeal. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as cardiovascular-renal disease, to include hypertension, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air 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 during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f). Here, the Veteran is presumed to have been exposed to herbicides coincident with his service in the Republic of Vietnam during the Vietnam Era. As relevant to the instant case, hypertension is not included in the list of diseases acknowledged to be presumptively related to exposure to herbicide agents. However, although VA has not conceded a relationship between hypertension and herbicides, it is significant to note that, prior to 2006, the National Academy of Sciences (NAS) placed hypertension in the "Inadequate or Insufficient Evidence" category. However, in its update in 2006, NAS elevated hypertension to the "Limited or Suggestive Evidence" category. Update 2012 provides the history of NAS changing the categorization of hypertension beginning in its 2006 Update and subsequent Updates. See 79 Fed. Reg. 20,308 (Apr. 11, 2014). Update 2012 notes that NAS has defined this category of limited or suggestive evidence to mean that the "evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence." Id. at 20,309. In this regard, a veteran is not precluded from establishing service connection with proof of direct causation. 38 U.S.C.A. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his currently diagnosed hypertension (see July 2010 and September 2014 VA examinations) was caused or aggravated by his service-connected diabetes, or is related to his acknowledged in-service exposure to herbicide agents. The Veteran's service treatment records (STRs), including a December 1965 separation examination, are negative for any complaints, treatment, or diagnoses related to hypertension. Additionally, on his December 1965 report of medical history, the Veteran specifically denied currently having or ever having high blood pressure. Moreover, he does not contend, and the evidence does not show, that hypertension manifested within one year of the Veteran's service discharge, or that he has experienced a continuity of symptomatology of such disorder since service. Furthermore, the Veteran does not allege that his hypertension is related to his other service-connected disabilities of bilateral hearing loss and tinnitus. Thus, to establish service connection, there must be probative evidence linking the Veteran's currently diagnosed hypertension to his military service, to include his acknowledged in-service exposure to herbicide agents, or his service-connected diabetes mellitus. However, upon review of the evidence, the Board finds that service connection for hypertension is not warranted. In this regard, in a January 2010 statement, the Veteran reported that he received a diagnosis of mild hypertension in 1967. However, the earliest diagnosis of record of hypertension is contained in a private treatment note from June 2001. Subsequent treatment notes from September 2003 and August 2006 noted good compliance with treatment for hypertension and improvements in the Veteran's blood pressure. The Veteran was afforded a VA examination in connection with his claim in July 2010. At such time, the examiner opined that the Veteran's hypertension was not caused by or a result of his service-connected diabetes mellitus. She reasoned that hypertension occurs because of a narrowing in the arteries and, in diabetics, this can be caused by continued and consistently high blood glucose levels. She noted that, when the blood flow is restricted, the blood pressure increases; however, the Veteran had done a great job of controlling his diabetes. In a July 2014 remand, the Board found such examination to be inadequate as the July 2010 VA examiner did not address whether the Veteran's hypertension was directly related to his military service or aggravated by his diabetes mellitus. Thus, pursuant to such remand, the Veteran underwent another VA examination in September 2014. At such time, the examiner noted that the Veteran was diagnosed with diabetes in June 2007 and had reported a history of hypertension of many years, perhaps 20 years. She essentially concluded that the Veteran's hypertension was not directly related to his military service. In this regard, she stated that it was not known what year the Veteran was diagnosed with hypertension; however, his STRs did not show that it was diagnosed while he was in service. Further, the Veteran estimated perhaps a 10 to 20 year history of hypertension. The examiner also found that hypertension is not recognized as an herbicide-related condition. With regard to secondary service connection, the examiner determined that it was not at least as likely as not that hypertension was either caused by or aggravated by the Veteran's service-connected diabetes mellitus. She noted that diabetes-associated hypertension occurs when there is evidence of diabetic-induced kidney dysfunction or neuropathy; however, the Veteran did not have any kidney disease related to his diabetes, which in general has been well-controlled. However, while the examiner's opinion as to whether the Veteran's hypertension was secondary to his service-connected diabetes mellitus was sufficient, the Board found that another opinion was needed to determine whether his hypertension was directly related to his military service, to include his in-service exposure to herbicide agents. Specifically, it was unclear whether the examiner had the opportunity to consider the NAS study in evaluating the etiology of the Veteran's hypertension as related to his acknowledged in-service exposure to herbicide agents. Furthermore, her rationale for finding no relationship between the Veteran's hypertension and his exposure to herbicide agents was based solely on the fact that hypertension is not acknowledged to be presumptively related to such exposure. Consequently, the Board requested a VHA opinion, which was obtained in July 2017. At such time, the examiner opined that it was less likely as not that the Veteran's hypertension was related to his acknowledged in-service exposure to herbicide agents. In support thereof, the examiner reasoned that, despite the recent articles from the NAS, the medical records documented that the Veteran met the criteria for obesity during the time period for which he had been treated for hypertension. Specifically, the examiner noted that the Veteran's body mass index based on his average weight of 220 pounds and height of 71 inches was 30.68, and that obesity was a known risk factor for the development of hypertension. Thus, the examiner concluded that it was less likely as not that the Veteran's hypertension was caused by his exposure to herbicide agents. Based on the foregoing, the Board finds that the preponderance of the evidence is against finding that the Veteran's hypertension is at least as likely as not related to his military service, to include his in-service exposure to herbicide agents, and/or his service-connected diabetes mellitus. In this regard, the Board accords great probative weight to the September 2014 opinion regarding the relationship between the Veteran's hypertension and his service-connected diabetes mellitus, and the July 2017 VHA opinion regarding whether his hypertension was directly related to his military service, to include his in-service exposure to herbicide agents, as they are predicated on a thorough review of the record. Such opinions clearly reflect consideration of the Veteran's lay statements and medical records, to include his STRs, and provide a complete rationale supported by the evidence of record. Furthermore, the opinions offer clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, the Board accords great probative weight to the September 2014 and July 2017 opinions. Notably, there is no contrary medical opinion. In the September 2017 response to the July 2017 VHA opinion, the Veteran's representative argued that, while that the Veteran was afforded VA examinations addressing whether his hypertension was caused or aggravated by his posttraumatic stress disorder (PTSD) and/or by his coronary artery disease (CAD), there was no medical opinion addressing whether hypertension was a result of in-service exposure to herbicide agents. However, VA examinations were not conducted to determine whether the Veteran's hypertension was secondary to PTSD or CAD as he is not service-connected for such disorders nor has he filed claims regarding such disorders. Furthermore, the July 2017 VHA opinion addressed whether the Veteran's hypertension was related to his in-service exposure to herbicides. Thus, the Veteran's representative's argument is based on an inaccurate factual premise and the Board finds such to be without merit. Additionally, to the extent that the Veteran believes his hypertension is related to his military service, to include his in-service exposure to herbicide agents, or his service-connected diabetes mellitus, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of hypertension is a matter not capable of lay observation and requires medical expertise to determine. Specifically, the question of etiology of such disorder, to include whether such is related to in-service exposure to herbicide agents and/or is caused or aggravated by diabetes mellitus, involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran's opinion as to the etiology of his hypertension is not competent evidence and, consequently, is afforded no probative weight. In sum, the Board finds that hypertension is not shown to be causally or etiologically related to any disease, injury, or incident during service, did not manifest within one year of service discharge, and is not caused or aggravated by a service-connected disability. Consequently, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for hypertension. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for hypertension is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs