Citation Nr: 1752787 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 08-20 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus (diabetes), coronary artery disease (CAD), or exposure to herbicide agents. REPRESENTATION Veteran represented by: Robert Chisholm, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Russell Veldenz, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to January 1972. His service included duty in Vietnam from October 1969 to October 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2012, the Veteran testified at a Board hearing before another Veterans Law Judge at the RO. Unfortunately, there is no transcript of the hearing available for the file. In an August 2012 letter, the Veteran was notified that a transcript could not be prepared, and he was provided an opportunity to request another hearing. The Veteran requested a second hearing and in September 2014, the Board remanded the case for another hearing. In January 2015, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the second hearing is in the record. In May 2013, the Board issued a decision denying the Veteran's claims. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in May 2014, the Court vacated and remanded the Board's decision for compliance with the instructions in a Joint Motion for Remand (JMR). In April 2015, the Board remanded the case to the RO for additional development. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In December 2016, the Board again denied the Veteran's claim for service connection for hypertension. The Veteran appealed the Board's decision to the Court and in a May 2017 Order, the Court vacated and remanded the Board's decision for compliance with the instructions in a JMR. FINDING OF FACT Resolving all doubt in the Veteran's favor, the most probative evidence of record demonstrates that hypertension was caused by service. CONCLUSION OF LAW The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Generally, in order to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). A Veteran who, during service, served in the Republic of Vietnam during the Vietnam era, beginning in January 1962 and ending in May 1975, shall be presumed to have been exposed during such service to herbicide agents, including an herbicide commonly referred to as Agent Orange. 38 U.S.C. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309. As the Veteran served in Vietnam, it is presumed that he was exposed to herbicides under 38 U.S.C. § 1116. Whenever VA's Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease. 38 U.S.C. § 1116(b)(1). There are several diseases that are presumed to have been caused by exposure to herbicides. See 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Nevertheless, the Secretary of VA has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. Notice, 72 Fed. Reg. 32,395 (2007). Hypertension is one of the conditions for which the Secretary has determined that a presumption of service connection is not warranted based upon reports of the National Academy of Sciences (NAS). See 59 Fed. Reg. 341 (Jan. 4, 1994); 61 Fed. Reg. 41,442 (Aug. 8, 1996); 64 Fed. Reg. 59,232 (Nov. 2, 1999); 67 Fed. Reg. 42,600 (June 24, 2002); 68 Fed. Reg. 27,630 (May 20, 2003); 72 Fed. Reg. 32,395 (June 12, 2007); 75 Fed. Reg. 32,540 (June 8, 2010); 75 Fed. Reg. 81,332 (Dec. 27, 2010); 77 Fed. Reg. 47,924, 47,927 Aug. 10, 2012). The NAS has been directed by the Federal Government to make a review and report its conclusions regarding the relationship between herbicide exposure and certain diseases, such as hypertension. Notwithstanding the aforementioned provisions relating to presumptive service connection, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Facts The Veteran essentially contends that he developed hypertension as a result of his active service, specifically as due to exposure to herbicide agents such as Agent Orange (Agent Orange exposure). In the alternative, he contends the hypertension is caused or aggravated by his service-connected diabetes or CAD. As discussed below, however, the Board finds it necessary to discuss only the contention that the Veteran's hypertension is caused by his Agent Orange exposure. As an initial matter, the Board notes that the Veteran has been diagnosed with hypertension. During the March 1969 enlistment examination, the Veteran denied any history of high or low blood pressure; on examination, his blood pressure was recorded as 110/68. The service treatment records show no in-service complaints, treatment, or diagnosis of hypertension. During the December 1971 separation examination, his blood pressure was recorded as 110/60, and he signed a statement that he was in good health. In both examinations, his heart was found to be "normal." The first treatment for hypertension following service occurred in January 2007. Blood pressure at time was 138/88; the assessment was hypertension, and the Veteran was started on blood pressure medication. In a May 2007 VA examination, the Veteran reported that he was not aware of having high blood pressure before his diabetes diagnosis or that he had any renal complications. The examiner noted that the Veteran was diagnosed with diabetes in November 2006 and hypertension and CAD in early 2007. The Veteran was noted to be obese. The examiner, however, did not offer an opinion with regard to the relationship of the Veteran's hypertension to service, including Agent Orange exposure, or his service connected disabilities. In a March 2013 VA examination, the Veteran reported he was diagnosed with hypertension around the same time as the diabetes diagnosis in late 2006. He also reported that he started his medications for both diabetes and blood pressure around the same time. Since that time, he has remained on blood pressure medications and that his blood pressure has been well-controlled on a stable medication dose. There was no history of kidney disease, and he had never been diagnosed with diabetic nephropathy. In April 2016, the March 2013 VA examiner prepared an addendum opinion. In it, the examiner concluded that it is less likely as not that that the Veteran's hypertension manifested in or is otherwise related to his military service, including herbicide exposure. He cited literature that reported only limited or suggestive evidence of an association between Agent Orange and hypertension. To be in the limited or suggestive evidence category, the evidence must suggest an association between exposure to herbicides and the outcome considered, but the evidence is limited because chance, bias, and confounding could not be ruled out with confidence. In addition, the lack of exposure information on Vietnam veterans prevents calculation of precise risk estimates. Based on these facts, hypertension is not considered by the VA to be a presumptive disease. The literature also demonstrated certain known risk factors for hypertension: Agent Orange is not included in the exhaustive list of risk factors or in any established link. In the Veteran's case, he had several common risk factors for hypertension: increasing age, obesity, and dyslipidemia. Based on the foregoing, including having several common risk factors for hypertension, there is no particular reason in this Veteran's case to suspect that Agent Orange caused his hypertension. Additionally, it would be unlikely that there would be a delay of 34 years before onset of the hypertension after the presumed herbicide exposure, i.e., the 1972 discharge and the first reported elevated blood pressure in 2006. In a letter dated in September 2017, a private physician, Dr. V.C., a specialist in occupational/environmental medicine, concluded that as likely as not, the Veteran's hypertension was caused by his Agent Orange exposure. Dr. V. C. disagreed that the literature reported only limited or suggestive evidence of an association between Agent Orange and hypertension. In addition, other diseases that are considered by VA to be presumptively connected due to Agent Orange exposure are also in the NAS category of limited or suggestive evidence. In her review of more recent literature since the last NAS report, the evidence establishes that Agent Orange causes hypertension. Nevertheless, she acknowledged that the most recent update from the NAS in 2014 continued placing both hypertension and ischemic heart disease in the limited or suggestive evidence category but noted hypertension is the only disease in the "limited but suggestive evidence" not presumptively service connected to Agent Orange exposure. Finally, as to other risk factors for hypertension, she found the only risk factor is the Veteran' weight. Analysis Initially, the Board notes the Veteran's attorney submitted prior decisions of the Board that granted service connection for hypertension as due to Agent Orange exposure. The prior Board decisions involve other veterans. The attorney argues the decisions are "influential" and that the Board should adopt the same holding by granting service connection for hypertension. As the decisions regarding the other veterans are based on different facts and evidence than in the present case, they have no bearing in the outcome of the Veteran's claim. Previously issued Board decisions are considered binding only with respect to the specific case decided and each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law. 38 C.F.R. § 20.1303 (2017). The Board notes that there is no dispute the Veteran currently has hypertension. Further, his service in Vietnam, and therefore his exposure to Agent Orange and other herbicides is also conceded. However, to establish service connection for hypertension the Veteran must affirmatively show, by competent medical evidence a nexus between such disease and service, including herbicide exposure. As noted hypertension is not one of the presumptive disabilities caused by herbicide agent exposure. 38 C.F.R. §§ 3.307, 3.309. The Board is not free to ignore VA's duly promulgated regulations. Franklin v. Brown, 5 Vet. App. 190, 193 (1993). Accordingly, affirmative evidence linking the Veteran's hypertension to his exposure to herbicides is necessary to establish service-connection. The Board notes that the VA examiner has concluded that hypertension is less likely than not is caused by or arose out of service. The Board has interpreted his conclusion is that medical knowledge cannot say there is at least a 50 percent probability herbicide exposure results in hypertension. See Wise v. Shinseki, 26 Vet. App. 517 (2014) (while the Board can consider the extent a scientific theory is accepted in the scientific community, it cannot demand a level of acceptance in the scientific community greater than the level of proof required by the benefit of the doubt rule). On the other hand, the Veteran's expert, Dr. V.C., upon looking at the same evidence and medical literature reached the opposite conclusion that the Veteran's hypertension has resulted from Agent Orange exposure in service. The evidence need only be in equipoise, not that it needs to be clearly determined whether a disability was caused by service. 38 C.F.R. § 3.303(a). See also Wise v. Shinseki, 26 Vet. App. 517 (2014) (medical literature discussing a link between a disability and another disability or service did not have to be established to the point of being generally accepted in the scientific community); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (noting that the extent to which a theory is accepted in the scientific community is a factor that the Board may use in evaluating scientific evidence but in a merits adjudication, the evidence need only reach equipoise). Here, as already noted, the significant facts are not disputed, that is, evidence of a diagnosis of hypertension. The same set of facts and review of the literature, however, has resulted in contradictory conclusions. The opinions before the Board explained their rationale by citing and extensively discussing medical literature which supported their respective positions of causation or no causation. Accordingly, the Board finds that there is an approximate balance of positive and negative evidence. Given both positive and negative nexus opinions of seemingly equal probative value, the Board finds that the evidence of record is in equipoise as to the matter of whether the Veteran's current hypertension disability is caused by his service, in particular, his Agent Orange exposure. The benefit of the doubt rule applies and is resolved in the Veteran's favor. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). As there is a reasonable doubt, which is resolved in the Veteran's favor, 38 C.F.R. § 3.102, all three elements of service connection are satisfied, and the benefit sought on appeal is granted. ORDER Entitlement to service connection for hypertension is granted. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs