Citation Nr: 1758024 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 09-08 552 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service connected disabilities. (The issue of entitlement to a disability rating in excess of 20 percent for diabetes is addressed in a separate Board decision; the issue of entitlement to a total disability rating based on individual unemployability (TDIU) is addressed in a separate Board decision; the issue of entitlement to payment or reimbursement of private medical expenses is addressed in a separate Board decision.) REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Purcell, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1968 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 2015, the Board remanded this matter to afford the Veteran a Board hearing. The Veteran testified at a January 2016 Board hearing before the undersigned Veterans Law Judge in St. Petersburg, Florida. A transcript of the hearing is of record. In August 2016, the Board remanded this matter for further development. FINDING OF FACT The Veteran's hypertension did not manifest in service or within a year after service, is not related to service, and is not related to or aggravated by his service-connected diabetes mellitus type II or obstructive sleep apnea disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus type II or obstructive sleep apnea, have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 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 requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for an increase in the severity of a nonservice-connected disability, a permanent worsening beyond the natural progress of the nonservice-connected disease, that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). For certain chronic diseases, such as hypertension, which is a type of cardiovascular-renal disease, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). When a chronic disease is not shown within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 that service." 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Hypertension is not, however, among those diseases listed in 38 C.F.R. § 3.309(e) for which service connection may be presumed due to herbicide agent exposure. In fact, Note 2 to 38 C.F.R. § 3.309(e) specifically provides that it "does not include hypertension." The Veteran may nevertheless show entitlement to service connection for hypertension on a direct basis, including as due to herbicide agent exposure. See Combee v. Brown, 5 Vet. App. 248 (1993). 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). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). The Veteran seeks service connection for hypertension, claiming that his hypertension had an onset in service or within a year of service, is related to service, to include herbicide agent exposure, or is related to or aggravated by his service-connected diabetes or obstructive sleep apnea disabilities. Regarding his alleged herbicide agent exposure, the Board acknowledges that the Veteran's DD Form 214 shows that he served in Vietnam from January 1969 to January 1970; therefore, herbicide agent exposure is presumed. See 38 C.F.R. § 3.307(a)(6). The Veteran's service treatment records do not show any diagnosed hypertension or elevated blood pressure readings. The Veteran's July 1968 entrance examination shows a blood pressure reading of 120/80. His June 1970 separation examination shows a blood pressure reading of 110/70 and notes that he is in good health. In October 2009, the Veteran underwent VA examination in relation to his hypertension. The VA examiner opined that the Veteran's hypertension was not caused by his diabetes because his hypertension had its onset prior to his diabetes. The VA examiner opined that the Veteran's hypertension was not worsened by his diabetes because there was no objective data to support aggravation. The Veteran underwent further VA examination in January 2017. The January 2017 VA examiner opined that the Veteran's hypertension less likely than not was incurred in service, related to service, or related to or aggravated by the Veteran's service-connected diabetes or obstructive sleep apnea disabilities. The VA examiner explained that the Veteran has multiple hypertension etiologic risk factors such as age (the Veteran was 44 years old at the time of diagnosis in 1994), increasing weight (the Veteran gained 60 pounds between separation from service and time of diagnosis), race, and first degree family history (the Veteran's mother had hypertension). The VA examiner cited current medical literature showing that age, obesity, race, and family history are risk factors that are strongly and independently associated with the development of hypertension. The medical literature states that hypertension is twice as common in individuals with one or two hypertensive parents. The VA examiner opined that the Veteran's hypertension is most likely due to these factors. The January 2017 VA examiner opined that the Veteran did not have an onset of hypertension in service or in close proximity to service. The VA examiner noted that the Veteran's blood pressure upon separation from service was actually lower than upon his enlistment. The VA examiner noted that the medical records document hypertension between 1992 and 1994, and opined that the Veteran's hypertension likely had an onset sometime between 1988 and 1994. The VA examiner explained that the detailed February 1988 private treatment record (PTR) was silent for a history of hypertension or blood pressure elevations despite noting that the Veteran had a family history of hypertension through his mother. The February 1988 PTR documented a normal blood pressure reading at that time. An echocardiogram and a Holter monitor test were ordered in February 1988, and a March 1988 PTR shows that the results were essentially normal. The January 2017 VA examiner explained that the 1988 study showed an absence of left ventricular hypertrophy, which would have likely been present if the Veteran had experienced longstanding and untreated hypertension. The VA examiner also explained that the March 1988 PTR notation of "H/O HTN" appears to have not been a part of the active assessment given its placement on the page. The VA examiner further opined that the notation was likely either a reference to the one higher blood pressure reading or was a mistake and should have been "R/O HTN," an indication to rule out hypertension. The VA examiner reported that if the March 1988 clinician had identified a chronic condition of hypertension, the clinician would have included hypertension as a diagnosis and would have listed a therapeutic plan for blood pressure management. The VA examiner opined that the Veteran's hypertension is less likely than not related to service, to include exposure to herbicide agents in Vietnam. The VA examiner reviewed medical literature, which places hypertension in the category of limited or suggestive evidence of an association with herbicide agents. The VA examiner explained that limited or suggestive evidence of an association does not support a 50 percent or greater probability. The VA examiner again noted that the Veteran has multiple etiologic risk factors for the development of hypertension, such as age, weight, race, and first degree family history. The VA examiner opined that the Veteran's hypertension is less likely than not caused by or aggravated by his service-connected diabetes. The VA examiner explained that the Veteran's hypertension is most likely due to his risk factors, and that his hypertension had an onset prior to his diabetes. The VA examiner further explained that the record as a whole does not show aggravation of hypertension. The VA examiner addressed some VA treatment records stating that the Veteran's blood pressure was not controlled or was suboptimally controlled, which noted issues with medications. The VA examiner reported that the pharmacy information in the Veteran's VA treatment records suggests the Veteran has not fully adhered to the prescribed regimen for his hypertension. However, the VA examiner found that the Veteran's hypertension is generally controlled with medications. The VA examiner also explained that the natural history of hypertension is one of gradual progression. The VA examiner also opined that the Veteran's hypertension is less likely than not caused by or aggravated by his service-connected obstructive sleep apnea. The VA examiner noted that medical literature shows some association between obstructive sleep apnea and hypertension, but found that such association does not show that sleep apnea at least as likely as not caused or aggravated the hypertension. The VA examiner further explained that the Veteran's hypertension is most likely due to his hypertension risk factors, even if the Veteran's obstructive sleep apnea had long been present. The Board notes that a February 2016 letter from the Veteran's VA physician states that the long-term effects of untreated sleep apnea include hypertension. The VA physician's statement was general in nature. The VA physician did not opine as to whether the Veteran's sleep apnea caused his hypertension. The Veteran and his representative also referenced medical literature suggesting a connection between sleep apnea and hypertension. See July 2013 Substantive Appeal; January 2016 Board Hearing Transcript; Veteran's September 2016 Statement. As noted above, the January 2017 VA examiner considered medical literature but opined that the literature did not show a 50 percent or greater likelihood that the Veteran's sleep apnea caused or aggravated his hypertension. The VA examiner noted that the Veteran's hypertension is more likely due to his age, weight, race, and family history risk factors, and that the record did not show evidence of aggravation as hypertension naturally gradually progresses and the Veteran's hypertension was generally controlled with medication. The Board finds highly probative the VA medical opinions that the Veteran's hypertension was not incurred in service, related to service, or related to or aggravated by his diabetes and obstructive sleep apnea disabilities. The opinions are supported by rationales, including the rationale that the Veteran's hypertension is more likely related to his numerous risk factors for hypertension. The opinions are also supported by the evidence as a whole, including the Veteran's service treatment records, entrance and separation examinations, and VA and private treatment records. VA treatment records show that the Veteran's hypertension is generally well-controlled with medication, and issues with control tend to cite problems with medications, as noted by the VA examiner. The opinions are also in accord with the Veteran's VA physician's statement that while the Veteran was diagnosed with hypertension in 1994, he likely had untreated disease prior to that time. The opinions show consideration of the medical literature, including potential associations raised by the Veteran or other evidence in the claims file. The VA medical opinions are the most probative and adequate medical opinions of record. The only other opinion of record is that of the Veteran. In many instances, laypersons are competent to provide opinions regarding the etiology of a disorder. Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board finds that the reasoned opinion of a medical professional is more probative than the Veteran's lay assertions. The VA examiners have expertise, education, and training that the Veteran is not shown to have. As such, the VA opinions are afforded more weight. The Board therefore finds that the evidence weighs in favor of a finding that the Veteran's hypertension is not related to or aggravated by his diabetes or sleep apnea disabilities, or otherwise related to or incurred in service. For these reasons, the Board finds that the Veteran's hypertension did not have an onset in service or within a year of service, is not related to service, and is not caused by or aggravated by his diabetes or sleep apnea disabilities. Accordingly, the claim for service connection for hypertension must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, on these facts, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. ORDER Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs