Citation Nr: 1753036 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 10-32 586 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Z. Sahraie, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1970 to October 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia that denied service connection for hypertension. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in August 2014 in Atlanta, Georgia. The transcript is of record. The case has been twice remanded by the Board for further development, in October 2014 and again in December 2016. The matter has been returned to the Board for appellate review. FINDING OF FACT Hypertension was not manifested during active service or within one year of separation therefrom, and is not otherwise related to service, to include as due to herbicide exposure, or as proximately due to or chronically aggravated by service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to notify and assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has been provided notice letters throughout the appeal that address all notice elements required. There has been no allegation of notice error in this case. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). The Board has also satisfied its duty to assist. 38 U.S.C.A. § 5103A; 38 C.F.R. 3.159. VA has obtained all identified and available treatment records for the Veteran. In addition, the Veteran underwent a VA examination in August 2015. The Board finds the examination adequate, because it included a review of the medical file, an interview of the Veteran, and examination findings supported by rationale. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his appeal. The Veteran has not identified any outstanding evidence that needs to be obtained. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus Service connection may be established for disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Federal Circuit has held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309 (2016). Walker v. Shinseki, 708 F.3d 1331, 1338 (2013). 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 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, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). Service connection for hypertension may be established on a presumptive basis by showing that hypertension manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2016). Where hypertension manifests to a compensable degree within one year following separation from service, it is presumed to have had its onset in service even though there is no evidence of hypertension during service. 38 C.F.R. § 3.307(a) (2016). If the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2016). Although the Veteran's service treatment records are generally silent for high blood pressure, his October 1972 separation examination documents a single elevated blood pressure reading of 146mmHg/90mmHg. There is no indication the Veteran was diagnosed with hypertension, nor any indication he received such a diagnosis, or registered a second elevated blood pressure reading, in the year following separation, or for nearly a decade thereafter. A note submitted by a private provider in December 2007 indicates the Veteran "was under...medical treatment from September 4, 1985 to December 18, 1990 [with a] diagnos[is] of arterial hypertension." This provider did not relate the Veteran's hypertension to any aspect of the Veteran's military service. Further, this statement does not include or reference any objective findings, and constitutes the sole notation in the record characterizing the Veteran's hypertension as "arterial" as opposed to "essential." Subsequent treatment records, including VA medical records from April 2004, show the Veteran's blood pressure was consistently in the normal range, despite his acknowledgement that he was "not taking meds." By July 2005, the Veteran's blood pressure was periodically recorded above the threshold for hypertension of 140mmHg/90mmHg. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2016). However, other readings, including several from the same month, show values below the threshold; providers noted they would "continue to follow" the condition, but there is no indication of a formal hypertension diagnosis. By late 2007, VA treatment records indicate the diagnosis had been furnished, adding the condition was poorly controlled without medication, and the Veteran was started on Lisinopril. Records from that period forward show hypertension consistently listed as an active diagnosis. The Veteran underwent a VA examination in connection with his service connection claim in August 2015. That examiner confirmed the hypertension diagnosis, but opined that because the Veteran's service treatment records were silent for documentation of hypertension, and the initial diagnosis came many years after service, it was less likely than not that the disorder related to service. Because the opinion failed to address the single elevated blood pressure reading at the separation examination, the examiner was asked to furnish an addendum opinion, which he did in January 2017. That opinion confirmed that the Veteran's current hypertension was less likely than not related to service, noting an April 2004 VA treatment note documenting the Veteran's denial of any history of hypertension, adding "[t]he service treatment records are negative for sustained elevated blood pressure readings or diagnosis of hypertension," and that "[t]he separation examination showed a single, elevated blood pressure reading of 146/90," which "was an isolated finding [which] does not meet the diagnostic criteria for a diagnosis of hypertension." The examiner continued, "[t]he available medical records do not document the diagnosis of hypertension in service or within a year after separation." The Board affords this opinion, taken to include its addendum, great probative weight, as it is uncontroverted by other objective evidence of record, and is, taken as a whole, in general accord with the evidence in this case. The examiner correctly notes that many years passed between separation and the first documented diagnosis of hypertension and prescription of medication therefor. The evidence covering those intervening years shows numerous blood pressure readings that fall below the hypertension threshold. The Veteran has also contended that his hypertension relates to in-service exposure to Agent Orange. 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.A. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309. If a Veteran was exposed to Agent Orange certain enumerated diseases will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§3.307(a)(6), 3.309(e). 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.A. § 1116(b)(1). In the Veteran's case, Agent Orange exposure has been conceded based on his presence in the Republic of Vietnam; his service-connected diabetes mellitus is presumed to be related to this exposure. However, hypertension is not considered to be presumptively related to Agent Orange exposure. In 2006, the National Academy of Science released its biannual report removing hypertension from the category of inadequate or insufficient evidence of an association to Agent Orange exposure to limited or sufficient evidence of a suggestive association to Agent Orange exposure. See Health Effects Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 32,540, 32,549, Notice (Jun. 8, 2010) (discussing "Veterans and Agent Orange: Update 2006"); See also 77 Fed. Reg. 47924, 47926, Notice (Aug. 10, 2012) (discussing Update 2010). At the Federal Government's direction, the Institute of Medicine of the Academy issues a report every two years on the effects of Agent Orange and similar herbicides to various diagnoses. The Board notes that the Secretary has reviewed each report by the Institute since 2006, which spends time and manpower resources going over the data on any link between Agent Orange exposure and hypertension. The current data on hypertension and Agent Orange is that there may be a limited suggestion for an association between the two. The Secretary, however, has concluded that the current sound medical and scientific evidence viewed by the Institute does not establish a positive association between the exposure of humans to an herbicide agent, and the occurrence of hypertension. Further, the record does not show that any treating or examining provider has ever suggested a link between exposure to Agent Orange and the Veteran's hypertension, and the Veteran has not advanced any expert evidence suggesting such a link in his case. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Board is not free to ignore VA's duly promulgated regulations. Franklin v. Brown, 5 Vet. App. 190, 193 (1993). Accordingly, the Board must deny service connection for hypertension on the basis of herbicide exposure. Finally, the Veteran has contended that his hypertension has been caused or aggravated beyond its normal course of progression by his service-connected diabetes mellitus. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2016). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In this case, no treating or examining provider has indicated the presence of any link between the Veteran's hypertension and his diabetes. The question was addressed by the VA examiner with whom the Veteran met in August 2015. That examiner stated, "regarding the issue of secondary service connection, either by causation or aggravation beyond normal progression...the condition claimed is less likely than not proximately due to or the result of or aggravated by the Veteran's service connected [diabetes]." The examiner explained that "hypertension which is caused by diabetes is due to diabetic nephropathy with renal involvement and proteinuria," adding, "this veteran does not have evidence of diabetic nephropathy with proteinuria." The examiner further explained that the Veteran "likely has essential hypertension," which is understood to be unrelated to diabetes; "essential" hypertension is, by definition, hypertension that owes to no known cause. As to the question of aggravation, the examiner explained that it is less likely than not that the Veteran's hypertension has been permanently aggravated by his diabetes mellitus; rather, he opined that noncompliance with treatment constitutes the primary cause of the elevated blood pressure readings in the record, citing February 2011 VA treatment notes documenting the Veteran's failure to take prescribed blood pressure medications as directed. With respect to both the questions of proximate causation and aggravation by the service-connected diabetes, the Board finds the August 2015 VA examiner's assessments, coupled with his January 2017 addendum opinion, to constitute the most probative evidence of record. These assessments are thoroughly reasoned, based on an examination and interview of the Veteran, and a review of the case file. Most critically, the assessment as a whole is uncontroverted by the objective evidence of record. While the Board has considered with sympathy the Veteran's lay statements, it cannot afford probative weight to his assertions with respect to the etiology of his hypertension in this case. While he is competent to report his experiences and symptoms since service, the Veteran is not competent to provide a nexus opinion regarding the nature and etiology of his hypertension. Jandreau v. Nicholson, 492 F. 3d 1372 (2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Veteran's reports of his symptoms are relevant, competent, and credible; however, the question of the etiology of hypertension is limited to the purview of someone with medical knowledge and training, such as the VA examiner in this case. In sum, the evidence does not show that it is at least as likely as not that hypertension is related to active service; or that it was caused or aggravated by service-connected diabetes; or that it is related in any way to Agent Orange exposure. The probative value of the Veteran's assertions is outweighed by the probative value of the thorough and reasoned opinion of the physician who performed the August 2015 VA examination. As the preponderance of the evidence is against the claim, service connection for hypertension must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for hypertension is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs