Citation Nr: 1802302 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-36 202A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1965 to March 1969, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In March 2014, the Board remanded the matter on appeal for further development. At such time, the issue of entitlement to service connection for tinnitus was also remanded. In a September 2014 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for tinnitus. Therefore, as the benefit sought on appeal with regard to such matter has been granted in full, this issue is no longer before the Board. In October 2016, the Board determined that further medical inquiry was necessary to decide the Veteran's claim for service connection for hypertension and sought an expert medical opinion from the Veterans Health Administration (VHA) pursuant to VHA Directive 1602-01, which was received in January 2017. The Board sought further clarification later that month and an addendum opinion was provided by an additional expert in April 2017. In October 2017, the Veteran and his representative were provided with a copy of the opinions and allowed 60 days to submit additional evidence and/or argument. The Veteran's representative filed a response in December 2017. The Board observes that additional evidence, to include VA and private treatment records, as well as VA examination reports dated in November 2016, have been received since the issuance of the most recent supplemental statement of the case in September 2014. The Veteran has not waived Agency of Original Jurisdiction (AOJ) consideration of such evidence. However, such merely confirm a current diagnosis of hypertension, a fact that was previously considered by the AOJ, and do not address the missing element in this case, i.e., a nexus between the Veteran's hypertension and his military service and/or service-connected diabetes mellitus. Therefore, as such evidence is duplicative of that previously considered by the AOJ, the Board finds it to be irrelevant to the instant matter. 38 C.F.R. § 20.1304(c) (2017). Consequently, no prejudice results to the Veteran in the Board proceeding with a decision at this time. FINDING OF FACT Hypertension is not shown to be causally or etiologically related to any disease, injury, or incident during service, did not manifest within one year of the Veteran's service discharge, and is not caused or aggravated by his service-connected diabetes mellitus, type II. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Further, while the Veteran's representative generally alleged that a May 2014 VA examination did not adequately assess the Veteran's condition to his prejudice in his December 2017 brief, he failed to identify a specific deficiency in such examination. Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004); Hilkert v. West, 12 Vet. App. 145, 151 (1999). Even so, as the Board previously determined that the etiological opinion offered in connection with such examination was inadequate, the Board does not herein rely on such in denying the Veteran's claim. Furthermore, neither the Veteran nor his representative has alleged any other deficiency with respect to VA's duties to notify or assist. See Scott, supra (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 duty to assist argument). II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Additionally, for veterans who have served 90 days or more during a period of war or after December 31, 1946, certain chronic diseases, such as cardiovascular-renal disease, to include hypertension, 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. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, 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 service. 38 U.S.C. § 1116(f). In the instant case, the record confirms that the Veteran served in the Republic of Vietnam during the requisite period and, therefore, he is presumed to have been exposed to herbicide agents coincident with such service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected even though there is no record of such disease during service. 38 C.F.R. § 3.309(e). With exceptions inapplicable in the instant case, the diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307 (a)(6)(ii). Hypertension is not included in the list of diseases acknowledged to be presumptively related to exposure to herbicide agents. In this regard, while VA has not conceded a relationship between hypertension and herbicides, it is significant to note that, prior to 2006, the National Academy of Sciences (NAS) placed hypertension in the "Inadequate or Insufficient Evidence" category. However, in its update in 2006, NAS elevated hypertension to the "Limited or Suggestive Evidence" category. Update 2012 provides the history of NAS changing the categorization of hypertension beginning in its 2006 Update and subsequent Updates. See 79 Fed. Reg. 20,308 (Apr. 11, 2014). Update 2012 notes that NAS has defined this category of limited or suggestive evidence to mean that the "evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence." Id. at 20,309. 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). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). 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. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran seeks service connection for hypertension. In this regard, in written correspondences throughout the appeal period, he contended that his hypertension was caused or aggravated by his service-connected diabetes mellitus, type II. As an initial matter, the Board finds that the record reflects a current diagnosis of hypertension. In this regard, such shows that he was first diagnosed with hypertension in approximately 1980 (see May 2009 and May 2014 VA examinations) and received treatment for such condition from September 1999 to the present. The Veteran's service treatment records (STRs) are silent as to complaints, treatment, or a diagnosis referable hypertension; however, such reflect that, in March 1968, the Veteran's blood pressure was 142/85 and, at his March 1969 separation examination, it was 142/82. After service, during an unrelated April 1970 VA examination, the Veteran's blood pressure was 160/88, 150/88, and 150/88. The examiner attributed the increased blood pressure to anxiety; however, he also noted that the Veteran denied being anxious during the examination. The examiner also observed that the Veteran was obese. In May 2009, a VA examiner noted that the Veteran was diagnosed with hypertension in 1980 and with diabetes mellitus in September 2007. He determined that the Veteran's hypertension was not a complication of diabetes as the onset of hypertension was prior to the onset of diabetes. He also opined that the Veteran's service-connected diabetes mellitus did not aggravate his hypertension, but did not provide a rationale for such opinion. Consequently, the Board remanded the matter in March 2014 in order to obtain an adequate opinion. Thereafter, at a May 2014, the examiner essentially reiterated the May 2009 VA examiner's opinion, noting that the Veteran's essential hypertension began long before his diagnosis of diabetes and that he had the following risk factors for hypertension: obesity, lack of physical activity, and being a male over the age of 65. However, the examiner's opinion was not well-articulated and the rationale was inadequate as it only provided a list of risk factors. As the opinions previously obtained were inadequate, the Board sought an expert medical opinion from VHA in October 2016 that addressed whether the Veteran's hypertension began in service, manifested within one year of his service discharge, was related to his presumed in-service exposure to herbicide agents, and/or was caused or aggravated by his service-connected diabetes mellitus, type II. In response, Dr. A.S., a VHA physician, opined that it was as likely as not that the Veteran's hypertension did not begin in service. As rationale for the opinion, the VHA physician reported that the Veteran's blood pressures were normal just after service as seen in 1970. Here, she noted that the Veteran's blood pressure readings were in the normal range at such time, and were also now considered normal. The VHA physician further opined that it was as likely as not that the Veteran's hypertension did not manifest within one year of him leaving the military. In this regard, she reported that the Veteran had normal blood pressure readings in 1974 and he continued to gain weight, which could elevate blood pressure. Here, she explained that weight loss could lower blood pressure without the need of medications. Furthermore, the VHA physician opined that it was as likely as not that the Veteran's hypertension was unrelated to his military service/herbicide exposure as there was not any accepted Agent Orange association and the Veteran continued to gain weight, which could cause hypertension. However, the VHA physician opined that it was possible that the Veteran's diabetes mellitus had aggravated his hypertension. In this regard, she reported that a December 2010 rating decision noted that the Veteran's "hypertension is associated with his diabetes mellitus, type II, but is NOT service-connected nor secondary to it." Here, she indicated that she did not have a list of medications for the Veteran's blood pressure treatment; therefore, she could not tell if his blood pressure was difficult to treat. She further indicated that the Veteran's weight continued to increase, and his diabetes mellitus required the addition of insulin in 2011, which suggested that it was more difficult to control his diabetes mellitus. The VHA physician noted that obesity, smoking, and alcohol could all cause diabetes mellitus, heart disease, and hypertension. The VHA physician concluded that, as the Veteran's hypertension predated his diabetes mellitus and ischemic heart disease, such could not be caused by either of those diseases. Subsequently, in January 2017, the Board sought further clarification from the expert as to whether the Veteran's hypertension is related to his military service, to include his acknowledged in-service exposure to herbicide agents as the initial opinion did not consider NAS's Updates reflecting that hypertension is in the "Limited or Suggestive Evidence" or his in-service weight. Also, the Board requested clarification as to whether it was at least as likely as not that the Veteran's hypertension is aggravated by his service-connected diabetes mellitus type II, as an equivocal opinion was initially rendered. In response, an additional VHA physician, Dr. S.K, opined that the Veteran's hypertension did not begin in service. As rationale for the opinion, she reported that blood pressure readings found in the Veteran's STRs did not meet the criteria for a diagnosis of hypertension. The VHA physician further opined that the Veteran's hypertension did not begin within one year of his separation for service as his one-year post-discharge blood pressure readings did not meet the criteria for a diagnosis of hypertension. Additionally, the VHA physician opined that the Veteran's hypertension was not caused by his military service, to include his weight, blood pressure readings, and/or exposure to herbicide agents. In this regard, she reported that hypertension was an extremely prevalent diagnosis in the general population. She further stated that genetic predisposition, age, male gender, co-morbid medical conditions, and life-style factors contributed to the development of hypertension. Here, the VHA physician noted that the Veteran's hypertension was caused by a combination of the pre-disposing factors that he possessed, including his weight gain (approximately 70 pounds since separation), age, male gender, and sedentary lifestyle, which elevated his blood pressure. She further noted that although the Institute of Medicine (through NAS) had indicated that there was "limited or suggestive evidence" of a link between Agent Orange exposure and the development of hypertension, such category was defined to mean that a firm conclusion was limited because chance, bias, and confounding factors could not be ruled out with confidence. The VHA physician indicated that the preponderance of the evidence supported that the Veteran's hypertension was not caused by Agent Orange exposure, but rather the multiple pre-disposing factors listed above. Furthermore, the VHA physician opined that the Veteran's hypertension was not aggravated by his service-connected diabetes mellitus. As rationale for the opinion, she reported that there was no evidence in the Veteran's treatment records that supported worsening blood pressure readings or more difficult to control blood pressure after the onset of his diabetes mellitus. The Board finds that the opinions provided by the VHA physicians are highly probative as to the etiology of the Veteran's hypertension. In this regard, the opinions reflect consideration of all relevant facts and the examiners provided a detailed rationale for the conclusions reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Notably, there is no contrary medical opinion of record. The Board notes that the Veteran has contended that his current hypertension is caused or aggravated by his service-connected diabetes mellitus, type II. The Veteran, as a layperson, is certainly competent to report matters within his personal knowledge, such as the occurrence of an injury or event, or his own symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, in the instant case, the Board finds that the question regarding the potential relationship between hypertension, and any instance of his service-connected diabetes mellitus, type II , to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions); Jones v. Brown, 7 Vet. App. 134, 137 (1994) (where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). In this regard, the etiology of hypertension, to include whether such is caused or aggravated by diabetes mellitus, type II, involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. There is no indication that the Veteran possesses the requisite medical knowledge regarding such matter. Moreover, the Veteran has offered only conclusory statements regarding the relationship between his service-connected diabetes mellitus, type II, and his current hypertension. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board affords the Veteran's statements as to the etiology of his hypertension no probative weight. Therefore, based on the foregoing, the Board finds that the Veteran's hypertension is not shown to be causally or etiologically related to any disease, injury, or incident during service, did not manifest within one year of service discharge, and is not caused or aggravated by his service-connected diabetes mellitus, type II. As such, service connection for such disorder is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for service connection for hypertension, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for hypertension is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs