Citation Nr: 1801876 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 09-11 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to service connection for residuals of thyroid cancer, to include as due to herbicide agent exposure. 2. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure, or as secondary to a service-connected disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Bristow Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1965 to October 1968 and from April 1971 to June 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. Jurisdiction is now with the RO in Togus, Maine. In September 2012 and May 2017 the Board remanded the current issues for further evidentiary development. The Board notes that additional medical evidence and lay statements have been received since the last adjudication of the case by the RO. However, after review of the claims file, the Board finds these items to be duplicative of evidence and statements already in the record prior to the RO's last adjudication of the case. FINDINGS OF FACT 1. The Veteran's residuals of thyroid cancer are not related to active service or any incident in service, including herbicide agent exposure. 2. The Veteran's hypertension is not related to active service or any incident in active service, including herbicide agent exposure; his hypertension was not caused by and has not been aggravated by his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for residuals of thyroid cancer, to include as due to herbicide agent exposure, have not been met. 38 U.S.C. §§ 1110, 1116 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.308, 3.309 (2017). 2. The criteria for service connection for hypertension, to include as due to herbicide agent exposure or as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist With respect to the Veteran's claim decided herein, no notice or duty to assist deficiencies have been alleged by the Veteran or his representative. 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 a duty to assist argument). II. Service Connection In order to obtain service connection, the evidence 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, i.e., a "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 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. 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). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. Additionally, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and certain diseases, such as hypertension, become manifest to a degree of 10 percent within one year from the date of termination of such service, such diseases shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. With respect to continuity of symptomatology, the Court has held that, under 38 C.F.R. §3.303(b), the theory of continuity of symptomatology is an alternative route to establish service connection for specific chronic diseases, to include hypertension, and can only be used in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The competence, credibility, and probative weight of evidence, including lay evidence must be assessed. See generally 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Residuals of Thyroid Cancer The Veteran contends that his thyroid cancer was caused by herbicide agent exposure while serving in the Republic of Vietnam. The Veteran's service personnel records reflect that he served in the Republic of Vietnam during the Vietnam era; thus, he is presumed to have been exposed to an herbicide agent. 38 U.S.C § 1116(f); 38 C.F.R. § 3.307. However, thyroid cancer is not among the disabilities recognized by VA as associated with exposure to an herbicide agent. See 38 C.F.R. § 3.309(e). In addition, there is no competent evidence that links the Veteran's development of thyroid cancer to the presumed herbicide exposure. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). As thyroid cancer is not presumptive and there is no competent evidence that links this disability to his herbicide agent exposure, service-connection due to herbicide agent exposure on a presumptive basis is not warranted. 38 C.F.R. §§ 3.307, 3.309. The Veteran's service treatment records note that in April 1967 the Veteran had an enlarged lymph node complement at the mediastinum. The impression rendered was a sarcoid limited to the pulmonary lymph node system. See April 1967 Health Record. Following service, an abnormal thyroid mass was detected in January 2000 and excised in May 2000. The impression rendered was follicular carcinoma of the thyroid. See August 2007 VA Endocrine Clinic Note. The Veteran was afforded a VA examination in July 2017 to determine the etiology of his thyroid cancer. Upon examination of the record and the Veteran, the examiner opined that it was less likely than not that thyroid cancer was incurred in service, or caused or aggravated by an in-service injury, event, or illness, to include in-service herbicide agent exposure. The examiner stated that there was no evidence that herbicide agent exposure is a causal agent for thyroid cancer. Additionally, he stated that thyroid cancer is not a presumptive herbicide agent condition, and the National Academy of Sciences (NAS) Institute of Medicine's (IOM) most recent Agent Orange report, published in 2016, did not find sufficient evidence to conclude an association between herbicide agent exposure and thyroid cancer. The examiner also stated that April 1967 x-ray findings showing an enlarged lymph node was totally irrelevant to the issue of thyroid cancer. Specifically, he stated that a sarcoid was never clinically diagnosed in the Veteran, and in any event, a sarcoid has no relationship to thyroid cancer. Further, he stated that while the Veteran contends that his thyroid cancer was caused by in-service herbicide agent exposure, this contention is not supported by any medical finding. The Board notes that as a layperson the Veteran is competent to report his symptoms, and the circumstances surrounding such. See Layno v. Brown, 6 Vet. App. 465 (1994). Lay persons, however, are not competent to render an etiology opinion on complex medical questions such as presented here, i.e. the etiology of his thyroid cancer. See Woehlaert v. Nicholson, 21 Vet. App. 45 (2007). However, the July 2017 VA medical opinion is persuasive and warrants being assigned greater probative weight than the lay statements of record. The opinion was rendered by a medical professional with the expertise to opine on the matter at issue. In addition, the VA examiner addressed the Veteran's contentions and based the opinions following a review of the claims folder, as well as a complete physical examination. The opinion is well reasoned and is afforded greater probative weight than the Veteran's assertions. In sum, the most probative evidence of record preponderates against finding that the Veteran's thyroid cancer is related to service, to include as due to herbicide exposure. As there is not an approximate balance of positive and negative evidence regarding the merits of the claims that would give rise to a reasonable doubt in favor of the appellant, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Hypertension The Veteran also seeks entitlement to service connection for hypertension, to include as due to herbicide agent exposure or as secondary to his service-connected disabilities and treatment therefore. Post service treatment records indicate that the first elevated blood pressure reading was recorded in July 2000, and hypertension was diagnosed. See June 2016 VA examination; see also July 2017 VA medical opinion. Blood pressure medication was first prescribed to the Veteran in October 2005. Id. As a current disability has been established, the dispositive element is whether there is any etiological relationship between the Veteran's hypertension and an injury or disease in active service or whether the condition was caused or aggravated by his service-connected disabilities. The Veteran's own etiological opinions are not competent evidence in this case, where diagnosis of the condition (hypertension) requires diagnostic testing and/or specialized medical knowledge, training, and experience, and the determination of the cause of the conditions requires specialized knowledge, training, and experience. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012); Jandreau, 492 F.3d at 1377. His statements regarding observable symptoms and reports of prior medical treatment have been considered in the context of the competent medical opinions. The competent medical evidence on the issue includes the June 2016 and July 2017 opinions of the VA examiner. In June 2016, upon examination of the record and the Veteran, the examiner opined that it was less likely than not that hypertension was incurred in service, or caused or aggravated by an in-service injury, event, or illness, to include as secondary to his service-connected disabilities of post-traumatic stress disorder (PTSD) and asthma. The examiner stated that there was no plausible mechanism to explain how asthma or PTSD would cause hypertension. Additionally, the examiner stated that the Veteran's hypertension was less likely than not aggravated beyond its natural progression by the Veteran's service-connected disabilities. Specifically, the examiner stated that the Veteran's medical record did not substantiate any aggravation of hypertension, as the Veteran has been treated with the same medication regimen for the entirety of his hypertension treatment. In the Board's May 2017 decision, the June 2016 examiner was asked to answer additional questions in regard to the etiology of the Veteran's hypertension. The examiner opined that the Veteran's hypertension was less likely than not incurred in or caused by an in-service injury, event, or illness, to include exposure to herbicide agents or as secondary to a service-connected disability. The examiner stated that etiologic relationships between hypertension and herbicide agent exposure have been under study by the IOM for almost 20 years, and that no definitive medical/scientific evidence exists supporting a relationship. Referring to a 2016 report from the IOM, the examiner noted there was no compelling evidence to change the categorization of the relationship between herbicide exposure and hypertension from the "limited and suggestive" category. Additionally, while the examiner noted that the Veteran had several elevated blood pressure readings while in service, he reported that these elevated blood pressure measurements were associated with acute asthma and/or medications, such as epinephrine, to control the same. He stated that these iatrogenic transient elevations do not establish long-term chronic hypertension. He stated that the medications used to treat asthma attacks (e.g., epinephrine) can transiently elevate the BP, but neither asthma nor asthma medications have been proven to cause sustained hypertension, which is substantially different from transient and episodic blood pressure elevations such as those due to anxiety, dyspnea, fear, pain, or short-term medications such as epinephrine. In regard to the Veteran's contention that his PTSD caused hypertension, the examiner stated that published evidence is inconsistent and often conflicting. As an example, the examiner referred to a study of Iraq and Afghanistan veteran patients that found that veterans with PTSD had a higher prevalence of all cardiovascular risk factors, including obesity, tobacco use, hyperlipidemia, diabetes, and hypertension. The examiner stated that the results of the study did not imply that PTSD causes other well-known risk factors such as obesity, diabetes, etc., but rather, it strongly suggests that the established risk factors are much more likely than PTSD to be etiologic factors. The examiner further stated that it is established that primary or essential hypertension reflects many separate etiologic origins with the most important factors likely being genetic predisposition and advancing age. With respect to aggravation, in particular, the examiner noted that the Veteran's current blood pressure readings were within normal range and that the hypertension was reasonably controlled with the lowest possible dosage of medication. The examiner stated that based upon all of these facts, he did not believe there was any basis to conclude that the Veteran's hypertension was worsened beyond "normal progression." The Board, thus finds, that the examiner has provided a solid factual foundation and adequate explanation for his conclusion that the Veteran's service-connected conditions have not aggravated his hypertension beyond its natural progression. The June 2016 and July 2017 VA examiner's opinions have a solid factual basis, are adequately explained, and, so, have significant probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In sum, the most probative evidence of record preponderates against finding that the Veteran's hypertension is related to service, to include as due to herbicide exposure or as secondary to a service-connected disability. As there is not an approximate balance of positive and negative evidence regarding the merits of the claims that would give rise to a reasonable doubt in favor of the appellant, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-56. (CONTINUED ON NEXT PAGE) ORDER Service connection for residuals of thyroid cancer is denied. Service connection for hypertension is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs