Citation Nr: 1804384 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 15-42 526A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from January 1964 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Board notes that subsequent rating decisions were issued in February 2015 and July 2015. The Veteran submitted new evidence within one year of the February 2014 rating decision and as a result, that decision did not become final. The Board also notes that all three rating decisions were issued by different RO's. As the most recent one was issued by the Los Angeles RO and the Veteran's most recent address is in California, jurisdiction is appropriately with the Los Angeles RO. The case was remanded to the RO for additional development in May 2017. The case has returned to the Board for further appellate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2014). FINDINGS OF FACT 1. Hypertension was not manifest during service and is not caused or aggravated by service-connected PTSD and dermatitis. 2. The Veteran was not exposed to designated herbicide agents as he did not perform duties as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise indicating service near the Udon Air Base perimeter nor did he visit the Republic of Vietnam. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by active service, is not be presumed to have been incurred therein, and is not due to, or the result of, or aggravated by service-connected PTSD or dermatitis. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310(a)-(b) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. Remand Compliance As noted in the Introduction, this case was remanded to the Los Angeles RO for additional development in May 2017. The Board is satisfied that there has been substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-67 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1999) (holding that the Board errs as a matter of law when it fails to ensure compliance with its remand orders). II. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. 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 duty to assist argument). III. Service Connection Service connection requires competent evidence showing: (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). 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) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310 (a)-(b) (2017). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for hypertension, if the disease is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113 (2014); 38 C.F.R. §§ 3.307, 3.309 (2017). For a showing of chronic disease in service, there is required a combination of manifestations to identify the disease entity, and sufficient observation to establish chronicity at the time. As hypertension is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support a claim. 38 C.F.R. §§ 3.303, 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for hypertension may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2014); 38 C.F.R. § 3.307, 3.309 (2017). Evidence of record in the case also raised the issue of presumptive or direct service connection based upon exposure to certain herbicide agents. Military Personnel records confirm that the Veteran was stationed at Ubon Air Base in Thailand from January 1966 to October 1966. For United States Air Force Veterans serving at certain Thai Air Bases during the Vietnam era, including Ubon, herbicide exposure should be acknowledged on a facts found or direct basis if the Veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS, performance evaluations, or other credible evidence. 38 C.F.R. § 3.307(a)(6)(ii) (2017); M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.(q). While hypertension is not a presumptive disease for herbicide exposure under 38 C.F.R. § 3.309(e) (2017), a Veteran is not precluded from establishing service connection directly. See 38 U.S.C. § 1113(b) (2014) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Polovick v. Shinseki, 23 Vet. App. 48, 52-53 (2009) ("Even though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection."). The Board notes that these statutory provisions do not apply in this case. As discussed below, VA made a formal finding in February 2014. In pertinent part, the Veteran's exposure to Agent Orange could not be verified, indicating that procedures to do so have been exhausted and further action would be futile. Moreover, even though the Veteran's Military Personnel records and service treatment records (STRs) indicate service at the Udon Air Base, his DD 214 makes it clear that the Veteran never had duties as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise an MOS indicating service near the air base perimeter, nor did he visit the Republic of Vietnam. Evidence The Veteran served as a weapons mechanic in the USAF. He is the recipient of a Veteran Service Medal for service in Thailand. The Veteran contends that hypertension was incurred in service. In a November 2012 claim for service connection and in correspondence in November 2013 that he developed hypertension in 1969, that his base in Thailand was sprayed to kill foliage, and that he was directed to take salt tablets daily. Alternatively, he contends that service-connected PTSD is the proximate cause of hypertension. Hereafter, all blood pressure measurements are in units of millimeters of mercury (mmHg). Service personnel records show that the Veteran's duties were as a weapons mechanic. His evaluations during his service in Thailand cite his performance as a weapons loader on fighter aircraft. There is no mention of perimeter duties of any kind and no mention of special flights to Vietnam as would have been appropriate if his skills, experience, and the needs of his unit warranted this special duty. In a January 1964 enlistment examination, blood pressure was measured as 130/90. STRs reveal that an examiner provided a blood pressure reading of 130/86 in February 1967. A subsequent notation from September 1967 provided a reading of 130/90 at the time of a surgical procedure. In his December 1967 Separation Examination (Report of Medical History), the Veteran specifically denied a history of high or low blood pressure. He also reported that he did have any other illness. Otherwise, according to this separation examiner, the Veteran denied "all other significant medical and surgical history." The blood pressure reading associated with the Separation Examination was 120/82. In April 1985, a physician at K. P., a large private medical provider, reported that the Veteran was mildly hypertensive with blood pressure of 140/90. The physician advised that the Veteran receive blood pressure testing on a regular basis. For approximately three decades thereinafter, the K. P. records show regular monitoring of blood pressure; precautions concerning the ways in which classes of medication might impact hypertension; and notations concerning prescribed medication and other modalities of hypertensive control. In November 2013, the Veteran submitted a letter. In pertinent part, he wrote that during his tour of duty in Southeast Asia, the perimeter of his base, roads and runways were sprayed to kill foliage. He stated that this spraying occurred several times in 1965. The Veteran also mentioned that his squadron commander directed all personnel to take two salt tablets each day during active duty. As a result of consuming "thirteen months of salt tablets," the Veteran claimed that he developed hypertension when he was 30 years old. VA made a formal finding in February 2014. As noted, the Veteran's exposure to Agent Orange could not be confirmed, despite extensive efforts through multiple communications and requests. In effect, additional efforts to seek confirmation would prove futile. As to the Veteran's MOS, moreover, the Veteran's DD-2214, two personnel evaluations for service at Udon, and Military Personnel Records show that his active service did not include the duties a security policeman; a security patrol dog handler; a member of a security police squadron; any other duties which necessitated service near the Udon Air Base perimeter. In February 2014, the Veteran submitted a statement, via VA Form 21-4138. In pertinent part, he claimed that he flew night missions from Vietnam to Thailand, adding that this would not be reflected in his DD-214, as the "U. S. Government did not and would not recognize these missions." In a July 2015 Notice of Disagreement, the Veteran noted that he had high blood pressure while in active service. He specifically referenced the February 1967 notation of 130/90 in his STRS, as noted above. At this time, he requested a physician's opinion as to the issue of a link between hypertension and his active service. In August 2015, the Veteran was afforded a VA contract examination with a physician. This physician reviewed the claims file, considered the Veteran's accounts of his medical history, and conducted a physical examination. According to the Veteran's lay account, he was first diagnosed with hypertension in 1970. The Veteran also reported that he took hypertension control medication on a regular basis. The physician provided an impression of hypertension, diagnosis two. As stated in the examination report: For VA purposes, the initial diagnosis of hypertension or isolated systolic hypertension-diagnosis two-must be confirmed by readings taken two or more times on at least three different days, providing that blood pressure results may be obtained from existing medical records or through scheduled visits for blood pressure measurements. The physician supported his impression of hypertension, diagnosis with a conforming series of blood pressure readings. The physician opined that it is less likely than not that the Veteran's hypertension is related to a condition incurred during active service. As a rationale, he advanced that 1967 STRs provided a blood pressure readings of 130/86 and 130/90, both of which were within normal limits. And, as noted above, blood pressure at separation was 120/82. Furthermore, the Veteran was diagnosed with hypertension with elevated cholesterol almost 25 years after active service, after which he was continually monitored. This evidence, according to the physician, indicates that it is likely that the Veteran's hypertension was incurred after active service. In December 2015, the Veteran opined in his substantive appeal (VA Form 9) that his blood pressure was 120/90 upon service induction, averring it was normal. Record of this examination shows blood pressure as 130/80. He further wrote that his blood pressure reading was 130/90 one year later, and he was given aspirin. This reading of 130/90, according to the Veteran, was moderately high. The Veteran claimed that his physician relayed this medical information. In April 2017, the Veteran's representative submitted a written brief presentation. In pertinent part, he advanced that the August 2015 VA contract examiner's finding as to the normalcy of a blood pressure reading of 120/82 was wrong. Citing an American Heart Association internet link, the representative conveyed that diastolic readings ranging from 90-99 indicate "hypertension stage one." Therefore, according to the representative, the Veteran had "hypertensive blood pressure" in September 1967, during active service. Here, the Board finds that the representative contention as to "hypertensive blood pressure" is misplaced. Hypertension as a disease process was not noted in STRs, and the Veteran did not have characteristic manifestations at any time during active service within the VA definition of hypertension. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2017) ("H]ypertension must be confirmed by ratings taken two or more times on a least three different days [...] The term hypertension means that diastolic blood pressure is predominantly 90 mm., or greater."). Moreover, this single measurement was obtained at the time of a pending surgical procedure and was not considered or diagnosed by the attending physicians as chronic hypertension. In August 2017, the VA contract physician, who performed the August 2015 examination, issued a supplemental opinion addressing issues raised in the Board's May 2015 remand. The physician opined that it is less likely than not that the Veteran's hypertension is causally or etiologically related to the Veteran's active service to include use of salt tablets and/or exposure to an herbicide agent. As a rationale, the examiner deferred to his May 2015 contentions. Additionally, he opined that the records available for review do not suggest complications from taking salt tablets during active service as blood pressure readings throughout service were recorded to be within normal limits. Furthermore, in support of his rationale, the physician noted while medical literature suggests that taking salt tablets may cause a temporary increase in blood pressure, while the Veteran's blood pressure remained within normal limits. As to the issue of herbicide exposure, discussed above, the physician added that hypertension if not listed as a presumptive condition due to herbicide exposure. As to the Veteran's contention that hypertension was proximately caused by his service-connected PTSD, the physician first noted that the Veteran's February 2015 mental health examination is silent as to this contention. Furthermore, all records available for review are silent regarding hypertension being secondary to service-connected PTSD. In short, according to the physician, there is simply insufficient evidence to establish any type nexus between hypertension and PTSD. Moreover, hypertension itself is common in the general population and is a disease that tends to develop gradually over many years. In December 2017, the Veteran's representative submitted a second written brief presentation. Here, the representative advanced an argument to the effect that another remand was required to clarify the Veteran's position on exposure to herbicides at the Ubon Base in Thailand. Here, the Board does not concur with the argument advanced. Both the Veteran and his representative received a copy of the Board's May 2017 remand which delineated-with some specificity-the information sought from the Veteran concerning his Udon herbicide contention. Neither the Veteran nor his representative submitted any material responsive to the remand. The Board reminds the representative that the duty to assist is not wholly the responsibility of VA. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wants help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence"). Analysis In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection for hypertension, to include as secondary to service-connected PTSD, is not warranted. As noted above, a Veteran seeking disability benefits must establish not only the existence of a disability, but also a connection (nexus) between his service and the disability. See Shedden, supra. In reaching these conclusions, the Board has carefully considered the Veteran assertions in the evidence. The Board acknowledges that, as a lay witness, the Veteran is competent to report his medical history and symptomatology. See Layno v. Brown, 6 Vet. App. 465, 469-79 (1994) (noting that personal knowledge is "that which comes to the witness through the use of his senses-that which is heard, felt, seen, smelled, or tasted"). Nevertheless, determining the potential cause hypertension, to include as secondary to PTSD-a disease involving in-depth knowledge of cardiology as well as psycho-somatic research-is beyond the scope of lay observation. See id. Thus, a determination as to the etiology of the Veteran's hypertension is not susceptible of lay opinion and requires highly specialized training. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing that the question of whether lay evidence is competent and sufficient is an issue of fact that is to be addressed by the Board); Layno, supra. The Board notes that there are no exceptions to the Court's Jandreau doctrine. Therefore, the Veteran's lay assertions do not constitute competent evidence concerning the etiology of his hypertension. See 38 C.F.R. § 3.159(a)(1) (2017) ("Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions."). The Board finds that the Veteran did not serve in Vietnam nor did his duties include work along the perimeter of the base at Udon. The Veteran's report of special flights to Vietnam is not credible as they are not consistent with the service records. With respect to establishing service connection on a secondary basis, the weight of evidence of record is against a finding that the Veteran's hypertension was caused, or aggravated, by his service-connected PTSD. As set forth in August 2017, the VA contract physician reported that the Veteran's hypertension was neither caused nor aggravated by his service-connected PTSD. As discussed above, this physician supported all of his findings with evidence of record (or lack of evidence thereof). Furthermore, the physician provided rationales for all opinions expressed. Here, the Board notes that the physician opined that the medical evidence of record, including a February 2015 mental health examination, is wholly silent as to any link or any causal relationship between PTSD and hypertension. The Veteran maintains that his hypertension is the result of his service-connected PTSD. Nevertheless, even where service connection is not warranted on a secondary basis, service connection may still be granted if the evidence of record establishes that the disability was incurred during active service. See Shedden, supra. Here, the weight of evidence of record is also against finding that the Veteran's hypertension initially manifested in, or is otherwise related to, his active service. The first evidence of "mildly hypertensive blood pressure" occurred in 1985, almost 20 years after the Veteran's active service. The Board notes that the passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered as evidence against a claim of entitlement to service connection. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed Cir 2000) (noting that the trier of fact should consider evidence of a prolonged period without medical complaint along with all the relevant facts and available evidence). In addition to the passage of time between the Veteran's active service and his private medical treatment in 1985, there is no competent evidence or opinion suggesting there exists a medical nexus between the Veteran's present hypertension and his active service. In sum, the competent opinions of record are against a finding that the Veteran's service-connected PTSD caused, or aggravated, hypertension. Moreover, the evidence of record does not include post-service records within one year after service, vitiating the possibility of identifying characteristic manifestations of hypertension during service or within one year of separation. Additionally, there is no competent evidence suggesting that there exists a nexus between the Veteran's hypertension and service. Accordingly, the weight of evidence is against a finding that the Veteran's hypertension was caused by, or otherwise related to, active service, to include his service-connected PTSD. The preponderance of evidence is against the Veteran's claim and there is no doubt to be resolved. See 38 U.S.C. § 5.107(b) (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD) and dermatitis, is denied ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs