Citation Nr: 1751990	
Decision Date: 11/14/17    Archive Date: 11/22/17

DOCKET NO.  10-41 745	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. Clark, Associate Counsel 

INTRODUCTION

The Veteran served on active duty from November 1960 to November 1990, including service in the Republic of Vietnam. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In March 2013, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge.  A hearing transcript is associated with the record.

In January 2014, May 2015, and October 2016, the Board remanded the case for additional development and it now returns for further appellate review. 


FINDING OF FACT

Hypertension is not shown to be causally or etiologically related to any disease, injury, or incident during service, to include exposure to herbicide agents, and did not manifest within one year of service discharge.


CONCLUSION OF LAW

The criteria for service connection for hypertension have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 1137, 5107 (West 2014); 38 C.F.R. 
§§ 3.102, 3.303, 3.307, 3.309 (2017).






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).

While the Veteran's representative argued that the Board failed in its duty to assist by not obtaining an adequate medical opinion addressing whether the Veteran's hypertension is related to his in-service exposure to herbicide agents, which will be discussed in detail herein, neither he nor the Veteran have alleged any additional deficiency with respect to VA's duties to notify or assist. 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, 1131; 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, 1137; 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 herbicide agents 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 herbicide agents, 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).

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 March 2014 VA examination) had its onset in service or is related to his acknowledged in-service exposure to herbicide agents. Specifically, at the March 2013 Board hearing, the Veteran testified that he was diagnosed with hypertension in 1974. 

In this regard, the Veteran's service treatment records (STRs) reveal that there were multiple blood pressure readings recorded during his service, to include elevated readings in September 1969 (130/96 & 138/92), March 1981 (140/70), February 1984 (140/100), February 1987 (148/82), October 1989 (136/88), and February 1990 (120/98).  Such records also indicate that the Veteran continued to report that he never had or then had high blood pressure, including in October 1974, but in August 1990, he reported that he did not know if he ever had or then had high blood pressure. 

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. However, upon review of the evidence, the Board finds that service connection for hypertension is not warranted.

In August 2010, web articles were received regarding how the correction of the hypertensive response in treadmill testing by the work performance improved the prediction of hypertension, medications used to treat hypertension, ways to diagnose hypertension, and the role of exercise treadmill in diagnosing hypertension. However, as noted above, the Board finds that the Veteran has a current diagnosis of hypertension; thus, such is not in contention.   

Pursuant to the January 2014 remand, the Veteran was afforded a VA examination in connection with his claim in March 2014. At such time, the examiner noted that the Veteran had a diagnosis of hypertension since 1996, and noted the Veteran's reports of having elevated blood pressure in service and that he was started on medication for hypertension in the mid-1990s. The examiner opined that the Veteran's hypertension was less likely than not incurred in or was caused by the claimed in-service injury, event, or illness. In support thereof, the examiner acknowledged that the Veteran had elevated blood pressure readings during service, but that such normalized on subsequent blood pressure checks. In this regard, the examiner explained that the diagnosis of hypertension was made when persistent elevated blood pressure readings were confirmed on serial blood pressure monitoring, and that the Veteran's blood pressure readings were normal in April 1990 and at his VA disability examination in 1991. Additionally, the examiner noted that the Veteran stated he was diagnosed and initiated on medication therapy in the mid-1990s, which was more than one year after his separation from military service. Thus, the examiner concluded that the Veteran's hypertension, currently controlled with lifestyle changes, was less likely as not caused by or related to his elevated in-service blood pressure readings or manifested within one year of his service discharge. 

In an April 2015 brief, the Veteran's representative requested consideration of the possibility that the Veteran's hypertension was etiologically related to his presumed exposure to herbicide agents during his service in the Republic of Vietnam. In particular, the Veteran's representative noted the Institute of Medicine (IOM) of the National Academies publication "Veterans and Agent Orange:  Update 2006" in which the IOM reported findings of limited or suggestive evidence indicating that exposure to herbicide agents is associated with an increased chance of developing hypertension.  As such, the Board remanded the claim in order to obtain an addendum opinion addressing such theory of entitlement.  In offering such opinion, the examiner was requested to consider all relevant evidence in the record as well as the IOM study.

Pursuant to the May 2015 remand, an addendum opinion was provided in July 2015. At such time, the examiner found that the Veteran's hypertension was less likely than not incurred in or was caused by the Veteran's presumed in-service exposure to herbicide agents.  In support thereof, the examiner stated that the IOM does not list hypertension as caused by exposure to herbicides and that the Agent Orange registry does not list hypertension as caused by exposure to herbicides. However, the Board found such opinion to be insufficient as the examiner failed to discuss the IOM study in reference to the Veteran's medical history and did not discuss the National Academy of Science's (NAS) Update 2012 addressing the relationship between hypertension and herbicide exposure. Furthermore, the examiner's rationale relied on the fact that the referenced studies did not include hypertension as caused by exposure to herbicide agents or that VA had not included hypertension on the list of presumptive conditions. 

Thus, pursuant to the October 2016 remand, an addendum opinion was obtained in November 2016. At such time, the examiner opined that it was not at least as likely as not that the Veteran's hypertension was related to his presumed in-service exposure to herbicide agents. In support thereof, the examiner noted that over 95 percent of hypertension was called primary, which meant that there was no defined, currently known underlying cause for hypertension in a given individual and that the risks for such hypertension included age, family history, gender, and stress. The examiner noted that the remainder of hypertension was secondary, which meant that there was a known cause for the hypertension and that such causes could be organ-related, vascular, endocrine, or neoplastic. The examiner explained that neither the primary components of herbicide orange nor the contaminant dioxin were chemicals known to cause hypertension acutely or chronically in humans. Thus, the examiner concluded that it was less likely as not that the Veteran's hypertension was secondary to exposure to herbicide orange. 

With regard to the studies from the IOM and NAS, the examiner noted that the finding of limited or suggestive evidence relating hypertension to herbicide orange and/or dioxin exposure was just that, limited and suggestive. In this regard, the examiner explained that the NAS/IOM conclusions could vary from report to report, but that by 2012, the NAS/IOM had not upgraded the risk of hypertension. Thus, the examiner determined that the fact that since 2006, the evidence relating hypertension to herbicide exposure had not become stronger or more definite, for example, moved up in categorization, was further proof that an etiologic connection between herbicide orange and dioxins could not be made with certainty " >/= 50 [percent]." The examiner also noted that the most definitive evidence in humans regarding the long term effect of Agent Orange was the 20 year study on Air Force personnel involved in Operation Ranch Hand. However, he noted that such study did not show any evidence of an increased incidence of hypertension in such personnel. The examiner also referenced a November 2016 article published in the Journal of Occupational and Environmental Medicine, which showed an adjusted odds ratio (OR) of 1.26 for hypertension in army chemical corps (ACC) veterans who sprayed defoliant in Vietnam. The examiner noted that such epidemiologic study only provided an association not causation. 

Specifically, the examiner explained that it was generally accepted that in a study of such sort, an OR must be greater than 2.0 to be definitive and that an OR of 1.26 meant that the affected population had a risk of 25 percent greater than the controls for hypertension. The examiner reasoned that such was not much of an increased risk and only related to the ACC personnel involved. The examiner further noted that the ACC personnel along with the Ranch Hand population would be expected to have higher TCDD levels since they worked on a regular basis with herbicide orange and that the standard service person in Vietnam would not have had such extensive exposure. Thus, the examiner concluded that it was less likely as not that the Veteran's hypertension was secondary to exposure to herbicide orange or dioxins encountered in Vietnam. 

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 did not manifest within one year of service discharge.

In this regard, the Board accords great probative weight to the March 2014 opinion regarding whether the Veteran's hypertension had its onset in, or within one year, or was otherwise directly related to his military service, to include his elevated in-service blood pressure readings, and the November 2016 opinion regarding whether his hypertension was related to 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 March 2014 and November 2016 opinions. Notably, there is no contrary medical opinion.

In his August 2017 brief, the Veteran's representative raised additional arguments. First, the representative argued that there was medical evidence available that tended to link the development of hypertension with herbicide exposures through the same mechanism that resulted in diabetes, which was a presumptive disorder related to herbicide exposure, and cited to a medical article that noted that Agent Orange resulted in diabetes by inducing insulin resistance and that insulin resistance was also linked to the development of hypertension. The representative also stated that the November 2016 examiner did not discuss the question of insulin resistance. 

In this regard, medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). Specifically, the Board notes that treatise evidence must "not simply provide speculative generic statements not relevant to the [claimant]'s claim." Wallin v. West, 11 Vet. App. 509, 514 (1998). Instead, the treatise evidence, "standing alone," must discuss "generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Id. (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)); Libertine v. Brown, 9 Vet. App. 521, 523 (1996); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Mattern v. West, 12 Vet. App. 222, 227 (1999).

In this case, the medical article cited by the Veteran's representative only provides general information as to the possibility of a link between exposure to herbicides and hypertension. It is not accompanied by any corresponding clinical evidence specific to the Veteran, and does not suggest a generic relationship between the Veteran's service and his hypertension with a degree of certainty such that, under the facts of this specific case, reflects plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. As such, the Board finds this information to not be relevant as to the matter for consideration and, therefore, is afforded no probative weight. Wallin, supra; Sacks, supra. 

The Veteran's representative also argues that the November 2016 examiner speculated in some aspects of his opinion. In particular, the representative contends that such examiner did a "disservice" to the Veteran by not knowing and discussing the specifics of the Veteran's exposures when the examiner noted that the studies involving the ACC personnel and the Ranch Hand population would have involved individuals with more herbicide exposure and that the standard service person in Vietnam would not have had such extensive exposure. However, even if the Veteran was exposed to the same levels as those involved in such studies, the examiner explained that the Operation Ranch Hand study did not show any evidence of an increased incidence of hypertension. With regard to the study involving the ACC personnel, the examiner explained that, while there was an increased risk shown, such study only provided an association and not causation between herbicide exposure and hypertension, and that the accuracy of such study was also in question due to relying on the self-report of physician diagnosed hypertension.

The Veteran's representative further argues that he did not understand the logic of the November 2016 examiner's opinion regarding the IOM study in which the examiner noted that there had been no advancement in the scientific relationship between the 2006 and 2012 publications, which was further proof that an etiologic connection between herbicide orange and dioxins could not be made with certainty " >/= 50 %." However, the Board finds that the November 2016 examiner was explaining that, since there had been no change in the categorization between the 2006 and 2012 publications, such was further proof that an etiologic connection between herbicide orange and dioxins could not be made with certainty equal to or greater than 50 percent.

Finally, the Veteran's representative questioned the November 2016 examiner's discussion on primary and secondary hypertension as he contends that the examiner intertwined such discussion with whether hypertension was secondary to the chemical exposures, which resulted in doubt as to whether the examiner understood the difference between his medical expertise and legal limitations. However, the Board finds that the examiner did not exceed his limits in doing such and the examiner ultimately opined that it was not at least as likely as not that the Veteran's hypertension was related to his presumed in-service exposure to herbicides. 

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, 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, 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.

Furthermore, the evidence of record fails to demonstrate that hypertension manifested within one year of the Veteran's separation from service.  In this regard, the March 2014 examiner noted that Veteran's blood pressure was normal during his VA disability examination in 1991. Additionally, such examiner noted that the Veteran stated he was diagnosed and initiated on medication therapy in the mid-1990s, which was more than one year after his separation from military service.
Moreover, to the extent that the Veteran has reported a continuity of hypertension symptomatology since service, no medical professional has related such complaints to a diagnosis of hypertension in the first post-service year.  Consequently, presumptive service connection, to include on the basis of a continuity of symptomatology, for hypertension is not warranted. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker, supra.

In sum, the Board finds that hypertension is not shown to be causally or etiologically related to any disease, injury, or incident during service, to include exposure to herbicide agents, and did not manifest within one year of service discharge. 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