Citation Nr: 1753112 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 11-15 702 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for hypertension, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jasmin C. Freeman, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from August 1969 to March 1973, including service in Vietnam. His awards and decorations included the National Defense Medal and Vietnam Service Medal. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In that rating decision, the RO denied the Veteran's request to reopen his claim for entitlement to service connection for hypertension as secondary to diabetes mellitus Type II. The Veteran testified at a travel board hearing before a Veterans Law Judge in May 2012. The transcript of that hearing could not be produced and as such, the Board remanded the case in October 2012, to allow for the scheduling of another hearing pursuant to the Veteran's request. In July 2013, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A copy of the transcript has been associated with the claims file. In December 2014 and February 2017, the Board remanded the case to the RO for further development and adjudication. FINDING OF FACT The most probative medical evidence demonstrates that the Veteran's hypertension was not incurred in or otherwise related to his period of active service or manifest within a year of his active service, and is not etiologically related to a service-connected disability. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In its February 2017 remand, the Board directed that the RO arrange for a VA examiner to review the claims file, evaluate the potential relationship between the Veteran's hypertension and active duty service, and provide an opinion as to the same. The remand also directed the RO to obtain any additional records identified by the Veteran and readjudicate the matter. The Board's February 2017 directives have been completed, and the case may move forward without prejudice to the Veteran. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in or aggravated by active military service. See 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). "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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for chronic disabilities, such as hypertension, if the disability is shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may also be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under section 3.310(a) of VA regulations, service connection may 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). Where a service-connected disability aggravates a non-service-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service in Vietnam for the purpose of the application of the presumption includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). In Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), the Federal Circuit upheld VA's interpretation of § 3.307(a)(6)(iii) to require a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption. Service on a deep-water naval vessel off the shores of Vietnam may not be considered service in Vietnam for purposes of 38 U.S.C. § 101(29)(A), unless evidence shows that a Veteran went ashore. VAOPGCPREC 27-97. Hypertension Turning to the Veteran's period of active duty, service treatment records are silent for complaints or a diagnosis of hypertension. In a March 1970 Report of Medical History, the Veteran denied having high blood pressure. The Veteran does not contend he was diagnosed with hypertension in service. Instead, he has repeatedly attributed his hypertension to diabetes mellitus. The Board notes that post-service evidence includes a diagnosis of hypertension. Accordingly, the first criterion for establishing service connection has been met. The question remains whether this condition is related to service or caused by a service-connected disability. As a preliminary matter, the Board notes that the Veteran was awarded service connection for diabetes mellitus in a December 2008 rating decision. However, a February 2011 rating decision severed service connection for diabetes, effective May 1, 2011, due to clear and unmistakable error in the December 2008 rating decision. In a December 2014 decision, the Board held that severance of service connection for diabetes was proper based on the lack of evidence of a current diagnosis for diabetes. As service connection for diabetes has been severed for lack of a clinical diagnosis of diabetes, it follows that the evidence does not support entitlement to service connection for hypertension as secondary to diabetes. The Veteran has also asserted that his hypertension is related to his in-service exposure to herbicides. The Board notes that hypertension is not one of the diseases presumed to have been caused by in-service exposure to herbicides. See 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). However, on August 10, 2012, VA published in the Federal Register, Determinations Concerning Illnesses Discussed in National Academy of Sciences (NAS) Report: Veterans and Agent Orange: Update 2010. See Notice, 77 Fed. Reg. 47924-47928 (2012). In that Notice, VA discussed NAS findings concerning hypertension and its possible relationship to herbicide exposure. VA noted that NAS had placed hypertension in the "Limited or Suggestive Evidence of Association" category. The Board has previously determined that the evidence is at least in equipoise that the Veteran served in-country in Vietnam. Accordingly, the Veteran's in-country Vietnam service entitles him to the presumption of exposure to herbicides. 38 C.F.R. § 3.307(a)(6)(iii). The evidence of record shows that the Veteran received a VA examination in March 2017 and was diagnosed with hypertension. In accordance with the Board's prior February 2017 remand, the examiner was asked to opine about the viability of a causal link between the Veteran's hypertension and his in-service herbicide exposure. The examiner determined that it was less likely than not (less than 50% probability) that the Veteran's hypertension was incurred in or caused by the claimed in-service injury, event or illness. In his rationale, the examiner specifically addressed the NAS Update 2010 and notions of a possible relationship between hypertension and herbicide exposure, finding that the NAS Update 2010 lacked convincing and consistent data to support a definite cause-effect relationship. He further stated that there was insufficient, documented evidence-based medical literature to support such a finding. In support of his opinion, the examiner cited other medical literature, stating that "[a]lthough primary hypertension is a heterogeneous disorder, some of the main causes of high blood pressure in primary hypertension are known. For example, overweight and obesity may account for as much as 65% to 75% of the risk for primary hypertension...Other factors, such as sedentary lifestyle, excess intake of alcohol or salt, and low potassium intake, are also known to increase blood pressure in many patients who are classified as having primary hypertension..." After a review of the medical evidence of record, the Board finds that the March 2017 VA examiner's opinion is the most probative and persuasive medical evidence in this case concerning the etiology of the Veteran's hypertension. The VA examiner reviewed the claims file and addressed the Veteran's assertions as to the origins of his hypertension. He also provided an adequate rationale for the conclusion reached based on the Veteran's medical record and the current medical literature. See Monzingo v. Shinseki, 26 Vet. App. 97 (2012) (examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion). Notably, the record does not contain a medical opinion to the contrary concerning the etiology of the Veteran's hypertension. Although the Veteran claims hypertension as a result of herbicide exposure, VA must explore all potential avenues for service connection. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (holding that a veteran is not precluded from establishing service connection with proof of actual direct causation). The Board has thoroughly reviewed the Veteran's medical record. These reports do not provide an etiological opinion linking hypertension to the Veteran's period of active service, or to a service-connected disability. The Veteran's service treatment records are silent as to any complaints or a diagnosis of hypertension. Furthermore, there is no medical evidence of record linking the Veteran's hypertension to his military service. The Board acknowledges the Veteran's belief that his hypertension is related to his active duty service. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (i.e., experiencing symptoms either in service or after service). See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Here, the Veteran is presumably competent to report symptomatology associated with high blood pressure. However, as a layperson without the appropriate medical training and expertise, the Veteran has not demonstrated the competency to opine as to the etiology of hypertension in this matter. The onset and etiology of hypertension are complex questions, and the Veteran has not been shown to possess the medical training and expertise required to provide such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, the most probative evidence is against a finding that the Veteran's hypertension is related to, or otherwise the result of, his period of active duty, including his herbicide exposure. The Board notes that the Veteran's service treatment records are silent as to a diagnosis of hypertension, and there is no probative medical evidence of record to suggest such a causal relationship between herbicide exposure and hypertension. Further, there is no indication that hypertension was diagnosed within one year of separation from active service. Finally, there is no evidence to show that hypertension was caused or permanently aggravated by any service-connected disability. The Board finds that the evidence does not support entitlement to service connection on a direct basis, as a result of exposure to herbicides, or on a secondary basis. As the weight of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for hypertension, to include as secondary to a service-connected disability, is denied. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs