Citation Nr: 1802947 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 11-26 319 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for hypertension, to include as due to herbicide agent exposure and/or as secondary to the service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to December 1969 in the United States Air Force. He served in Vietnam from November 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In March 2014, the Board remanded the claim for further development. In October 2014, the Board denied the claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In April 2015, the Court vacated the October 2014 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). In November 2015 and May 2017, the Board remanded the claim for further development. The electronic filing system contains documents pertinent to the appeal that were associated with the record since the RO's last readjudication of the claim. In December 2017, the Veteran's representative waived his right to have such evidence reviewed in the first instance by the RO. FINDING OF FACT The Veteran's hypertension is not attributable to service, including to his presumed herbicide agent exposure, was not caused or aggravated by his service-connected diabetes mellitus, and was not manifest within one year of separation from service. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In addition, service connection is 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 also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). The law also provides that the Veteran who, during active military, naval or air service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed during such service to certain herbicidal agents (e.g., Agent Orange) unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during service. If the Veteran was exposed to an herbicide agent during service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there was no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. Although military personnel records show the Veteran had Vietnam service during the Vietnam Era, hypertension is not a disorder presumed to be associated with herbicide agent exposure. See 38 C.F.R. § 3.309(e). As such, presumptive service connection based on herbicide agent exposure is not applicable to the claim. However, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Under VA regulations, hypertension must be confirmed by readings taken two or more times on at least three different days. The regulation also clarifies that the term "hypertension" means that the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104 , Diagnostic Code (DC) 7101, Note (1). Additionally, in order for hypertension to be considered compensably disabling, the evidence must show that diastolic pressure is predominantly 100 or more, systolic pressure is predominantly 160 or more, or there is a history of diastolic pressure predominantly 100 or more requiring continuous medication for control. 38 C.F.R. § 4.104, DC 7101. The Veteran has current hypertension, documented on VA examination in June 2017. He reports his hypertension is directly related to service, and/or to his service-connected diabetes mellitus. Service treatment records (STRs) show that on entry into service, the Veteran's blood pressure was 120 systolic and 80 diastolic. He did not report pertinent complaints on the accompanying Report of Medical History. The STRs generated during the course of the Veteran's military service do not document any complaints, treatment, or diagnoses pertaining to hypertension. On his separation examination, blood pressure was 108 systolic and 72 diastolic, and hypertension was not documented. However, there is no dispute that during service, the Veteran was exposed to herbicide agents while stationed in Vietnam. See, e.g., Rating Decisions May 2009 and May 2011. On VA diabetes examination in June 2009, the examiner opined that the Veteran's hypertension was less likely than not caused by or a result of his diabetes. A rationale was not provided. In October 2009, the Veteran submitted a letter from his private physician, Dr. C. Dr. C. stated that the Veteran's diabetes preceded the diagnosis of hypertension. He added, "since it is well known that diabetes can precipitate hypertension, I feel that it is entirely possible that the hypertension is a direct result of his diabetes type II." On VA examination in April 2014, the examiner opined that the Veteran's hypertension was less likely than not caused or aggravated beyond its natural progression by diabetes. The record indicated that hypertension existed prior to diabetes, and there was no indication of aggravation of the condition. In the April 2015 Joint Motion, the Court vacated the Board's October 2014 decision, in part, due to its reliance on the April 2014 VA examination report. The Court pointed to evidence, including the October 2009 report of Dr. C. and other treatment records, showing that the Veteran's diagnosis of diabetes preceded his hypertension. The Court also vacated the decision due to the fact that a medical opinion addressing the Veteran's herbicide agent exposure had not been obtained, and to ensure his due process rights had been met with regard to a past hearing request. In November 2015, the Board remanded the appeal for development consistent with the Joint Motion. In January 2016, a VA examiner reviewed the claims file, as well as the National Academy of Sciences (NAS) Institute of Medicine's Veteran and Agent Orange Update 2010, in accordance with the 2015 remand directive, which concluded there was limited or suggestive evidence of an association between herbicide agent exposure and hypertension. The examiner opined that the hypertension was less likely than not related to service, to include herbicide agent exposure therein. Although there is limited or suggestive evidence of an association between Agent Orange and hypertension, the lag time between the Veteran's herbicide agent exposure and the development of his hypertension made such an association less likely. The examiner further opined that his risk factors, including long-standing hyperlipidemia, obesity, and history of smoking, more likely led to the development of hypertension. As for secondary service connection, the examiner opined that the hypertension was less likely than not caused or aggravated by diabetes because there was no history of severe diabetic nephropathy, shown by an EGFR less than 25 (i.e. stage 4-5 chronic kidney disease). In May 2017, the Board remanded the claim in order for the January 2016 examiner to elaborate on her secondary service connection opinion. In June 2017, the January 2016 examiner provided an addendum opinion. She again reviewed the entire claims file. She explained that elevated blood pressure can be caused by severe diabetic kidney disease. Here, as the Veteran does not have a history of severe diabetic nephropathy, his hypertension is less likely than not caused or aggravated by diabetes. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The probative evidence does not show that the hypertension is related to the Veteran's active military service, or that a chronic disability was incurred in service. While the Veteran received treatment for a variety of conditions in service, he did not seek treatment related to hypertension or his blood pressure. Hypertension was not found within one year of separation from service; rather, the evidence reflects that the Veteran's hypertension was not shown until many years after service discharge. The fact that he sought treatment for other conditions after service, but not hypertension, weighs against the credibility of any statements that his hypertension persisted since discharge. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The medical opinion evidence is also persuasive. The January 2016 VA examiner addressed the contentions of direct service connection, but opined that the Veteran's hypertension was not related to military service, including his exposure to herbicide agents. Other etiologies, including long-standing hyperlipidemia, obesity, and history of smoking, were identified. The examiner also addressed the matter of secondary service connection in both of her opinions, but opined that the Veteran's hypertension was not caused by his diabetes mellitus given the absence of severe diabetic nephropathy(where EGFR is less than 25), or aggravated by it given the stability of the condition. The examiner based her conclusions on an examination of pertinent records in the claims file, including the post-service treatment records and diagnostic reports. She reviewed and accepted the reported history and symptoms in rendering the opinions, and provided a rationale for the conclusions reached. To the extent the Veteran's representative, in December 2017 correspondence, argues that a further medical opinion should be obtained discussing all of the medical articles submitted by the Veteran, the Board finds this unnecessary as the examiner's opinions are adequate. The Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). Moreover, the examiner reviewed the entire claims file twice, once in January 2016 and again in June 2017, which unambiguously contains several copies of the medical articles submitted by the Veteran. As the examiner considered the Veteran's entire claims file, and set forth objective findings necessary for adjudication with a rationale, the report is fully adequate. With further regard to the medical articles submitted by the Veteran in support of the claim, this evidence does not address the facts that are specific to this Veteran's particular case. As such, the Board finds that the information reflected in the submitted articles simply is not probative of the specific medical questions at issue in this appeal, and is outweighed by the professional opinions of the VA examiner. See Sickels, 643 F.3d at 1362. The Veteran's representative also argued in December 2017 that a further medical opinion should be obtained because the 2016 examiner was not a specialist in the relevant field of medicine. The Federal Circuit has held that any challenge to the expertise of a VA expert must set forth the specific reasons why the litigant concludes that the expert is not qualified to give an opinion. Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed. Cir. 2010). VA satisfies its duty to assist when it provides a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions, whether that is a doctor or other medical specialist. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). Additionally, the Board may assume a VA medical examiner is competent. Id. There is no probative evidence to support any contention that the 2016 examiner, a medical doctor (M.D.) with an additional Master of Public Health (M.P.H.) degree, was not competent to perform the examination and provide an opinion. As the 2016 and 2017 opinions are thorough, supported by an explanation, based on a review of the claims folder, and largely supported by the evidence of record, there is no reason for deeming the examination and opinions to be inadequate. The Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issue decided herein has been met. The Board considered the October 2009 letter from Dr. C., but finds it is of diminished probative value as it is speculative; Dr. C. opined it was "entirely possible" that the Veteran's hypertension was a direct result of his diabetes. See Tirpak v. Derwinski, 2 Vet. App. 609 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of a claimed disorder or any such relationship). The only other evidence to the contrary of the VA examination reports is the lay evidence. The Board finds that the Veteran's lay assertions are both admissible and believable. Consequently, the Board will weigh the lay statements against the medical evidence. The VA examiner was a medical professional who reviewed the claims file and considered the reported history, including the lay assertions. The examiner, in providing the requested medical opinions, used her expertise in reviewing the facts of this case and determined that the Veteran's hypertension was not related to service or his service-connected diabetes mellitus. As the examines explained the reasons for her conclusions based on an accurate characterization of the evidence, the opinions are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In weighing the VA examiner's opinions against those of the Veteran, the Board finds that the credibility and probative value of the specific and reasoned statement of the trained medical professional outweighs that of the general lay assertions. Additionally, presumptive service connection for hypertension as a "chronic disease" is not warranted as there is no probative evidence of hypertension from within one year of the Veteran's 1969 discharge. As for a continuity of symptomatology between the disorder and service, hypertension was not noted during service, and characteristic manifestations of the disease processes were not identified. Finally, as addressed above, the Veteran's statements pertains to continuity of symptomatology are not credible. Accordingly, § 3.303(b) is not applicable. See also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). The Board has considered the applicability of the benefit of the doubt doctrine, but as the preponderance of the evidence is against the Veteran's claim for hypertension, that doctrine is not applicable to the claim. In reaching this decision, the Board considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Service connection for hypertension is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs