Citation Nr: 1805584 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-32 417 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased disability rating in excess of 10 percent for psoriasis. 2. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel INTRODUCTION The Veteran had active service in the United States Navy from March 1966 to May 1971, and from April 1972 to April 1987. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified at a Central Office hearing before the undersigned Veterans Law Judge in October 2017. A transcript from that proceeding is associated with the Veterans Benefits Management System (VBMS) folder. 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) (2012). FINDINGS OF FACT 1. In October 2017, prior to the promulgation of a decision in the appeal, the Veteran requested that his appeal of the issue of entitlement to an increased disability rating in excess of 10 percent for psoriasis be withdrawn. 2. The Veteran currently has hypertension for VA compensation purposes. 3. The Veteran's hypertension as likely as not was incurred during active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement to an increased disability rating in excess of 10 percent for psoriasis have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. Entitlement to service connection for hypertension is warranted. 38 U.S.C. §§ 1101, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to an Increased Disability Rating in Excess of 10 Percent for Psoriasis The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the veteran or by his authorized representative. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204. During the October 2017 hearing, the Veteran testified on the record that he wished to withdraw the issue of entitlement to an increased disability rating in excess of 10 percent for psoriasis. See October 2017 Board Hearing Transcript (Tr.), page 2. Given that there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal, and it is dismissed. Entitlement to Service Connection for Hypertension Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran 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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease initially diagnosed after service 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). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including hypertension, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of a 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. 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 the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i). Section 3.307(d)(6) also provides that 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 C.F.R. § 3.307(d)(6)(iii). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. The diseases presumed to be associated with herbicide exposure include: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). In this decision, all blood pressure measurements are noted in units of pressure in millimeters of mercury (mmHg). For VA compensation purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 or greater; and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 or greater with diastolic blood pressure less than 90. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2017). In addition, hypertension must be confirmed by readings taken two or more times on at least three different days. See id. In this case, the Veteran contends that his hypertension first manifested during active service. He has also asserted that his hypertension is the result of his exposure to herbicide agents during active service. The Veteran's service treatment records (STRs) show that prior to the Veteran's first period of service beginning in March 1966, service examinations dated in October 1965 and February 1966 noted that he had a blood pressure of 100/70. The Veteran denied having a history of high or low blood pressure in the accompanying Reports of Medical History. During this period, a June 1967 STR reported that his blood pressure was 112/70. At the time of his separation examination in May 1971, the report stated that his blood pressure was 106/74. Before the Veteran's second period of active duty began in April 1972, a September 1971 service examination reported that his blood pressure was 108/76. His April 1972 entrance examination noted a blood pressure of 130/80, and the Veteran continued to deny a history of high or low blood pressure in the associated Report of Medical History. These reports were unchanged in a subsequent service examination and Report of Medical History completed in September 1975. In October 1978, a service examination reported a blood pressure of 118/82. Later in March 1979, his blood pressure was 135/85. Subsequent STRs documented that his blood pressure was 140/90 in December 1979, 120/90 in January 1981, and 110/90 in February 1981. In April 1982, his blood pressure decreased to 118/74. An August 1982 service examination later stated that his blood pressure was 118/82, but the report indicated that this reading was based on a measurement from October 1978. The Veteran's blood pressure was later noted to be 130/88 in June 1983, and 130/92 in June 1984. In September 1984, a blood pressure of 110/70 was noted. The blood pressure increased to 107/88 in February 1985. Another record from this month stated that his blood pressure was 130/100 with a repeat blood pressure of 120/84. By September 1985, his blood pressure was 112/90. Subsequent service examinations reported that his blood pressure was 124/78 in October 1985 and 100/80 in November 1986. The Veteran also denied having high blood pressure in November 1986. In March 1987, his blood pressure was documented to be 114/74. After the Veteran's separation from active duty, his blood pressure was noted to be 120/70 in June 1987, 118/84 in August 1987, and 110/80 in January 1988. In November 1991, a record from the National Naval Medical Center reported that his blood pressure was 122/88. In April 1992, his blood was 120/80, with a repeat blood pressure of 134/92. The record stated that a followup was needed regarding the Veteran's blood pressure at the next appointment. Less than two years later, the Veteran's blood pressure was 144/96 on March 10, 1994, and 185/95 on March 16, 1994. Over three consecutive days in April 1995, diastolic blood pressure measurements of 90 or greater were documented. On April 9, 1995, blood pressure readings of 150/118 and 170/110 were noted in a record from the National Naval Medical Center. The assessment was hypertension. The record stated that the Veteran had been under a lot of recent stress, and there was no previous history of hypertension. The record indicated that the issue would continue to be observed, and if the Veteran still had a higher blood pressure, then medication would be provided. On April 11, 1995, a record reported that the Veteran's blood pressure had been 168/96 on April 10, 1995, and it was 136/90 at the time of the visit. The record noted that the Veteran had increased stress and a high salt intake. According to the record, the Veteran's blood pressure had been 120/80 two months ago. A plan was made to continue to monitor the Veteran's blood pressure. On April 27, 1995, the Veteran's blood pressure was 138/94. The record noted that the Veteran's blood pressure readings at home ranged from 130 to 140 for systolic, and in the 80's for diastolic. Subsequent records reported that the Veteran's blood was 148/90 in June 1995, 133/84 and 123/91 in August 1995, 146/100 in April 1996, and 144/90 in September 1996. In November 1996, the Veteran's problem list included hypertension, and his blood pressure was 151/94. In May 1997, the Veteran's blood pressure was 151/94, and hypertension was still noted. In March 1998, a record stated that the Veteran was being followed for borderline hypertension. His blood pressure measurements were noted to be 140/90, 140/100, and 142/86. Another record from this month recorded his blood pressure as 144/90. By May 2005, the Veteran's blood pressure was 193/99 in a record from the National Naval Medical Center. A recheck of his blood pressure yielded 162/92. The assessment stated that hypertension needed to be ruled out. A subsequent July 2007 problem list noted hypertension, and a June 2008 outpatient medication list included lisinopril. In August 2009, a record from Walter Reed National Military Medical Center noted an assessment of hypertension (systemic). In March 2014, the Veteran's blood pressure was noted as 127/79, but the record stated that the Veteran's hypertension was well controlled on his regimen of medication that included hydrochlorothiazide, lisinopril, and losartan. Dr. S. stated that the Veteran has been in stage 2 of hypertension in January 2008, and he had improved tremendously since then. Regarding the question of a current diagnosis, the Board notes that the Veteran had several diastolic blood pressure readings that were 90 or greater since his active service. While it is unclear whether two or more readings were taken on each day, the records from April 1995 showed that this severity of diastolic blood pressure was present over three different days. The record indicates that the Veteran continued to have diastolic blood pressure readings at this level until he began to treat the hypertension with medication around 2008. In Disability Benefits Questionnaires (DBQs) completed by Drs. S., O., and M. in July and August of 2014, the doctors confirmed that the Veteran's current treatment plan included taking continuous medication for his hypertension that consisted of hydrochlorothiazide and lisinopril. Thus, the Board finds that the Veteran currently has hypertension for VA compensation purposes. In the July and August 2014 DBQs, the doctors opined that it was at least as likely as not that the Veteran's hypertension was incurred in service. After reviewing the Veteran's military records, the doctors stated that the Veteran's hypertension manifested while he was on active duty, prior to his 1987 discharge. They noted that the disorder had not been properly diagnosed or documented during the Veteran's active service. The doctors all highlighted different blood pressure readings from service that documented a diastolic blood pressure of 90 or greater as evidence of the manifestation of hypertension. Dr. M. noted that that the Veteran had a history of high blood pressure/hypertension dating back to the 1960's and 1970's; and he should have received treatment for the issue at that time. In October 2017, Dr. S. added that a review of the Veteran's military record showed several high blood pressure readings. Dr. S. noted that the Veteran should have received treatment long before becoming his patient approximately ten years before the letter. In a subsequent October 2017 statement, Dr. O. also noted that the Veteran's military records were full of high blood pressure readings that reflected hypertension long before his separation in 1987. Dr. O. indicated that by April 1995, the previously present hypertension had progressed to the point that his systolic readings ranged from 150 to 170. It was not until approximately 2007 that the Veteran began to improve after he finally received treatment with medication from Dr. S. In another October 2017 opinion, Dr. F. noted that he had reviewed the Veteran's military health records with a focus on his blood pressure readings. Dr. F. observed that these records demonstrated decades of clinically significant elevations in both the Veteran's systolic and diastolic pressures that warranted anti-hypertensive treatment to manage his risk of vascular diseases such as myocardial infarction, kidney failure, and stroke. However there was no evidence in his records of appropriate medical therapy prior to his receipt of medication from Dr. S. Dr. F. opined that the Veteran had been inappropriately denied such treatment during his active service. An additional letter was provided by M.B., RN, in October 2017. M.B. indicated that she had reviewed relevant records from the Veteran's military service. While M.B. did not provide any clear opinion regarding the Veteran's claim, she noted that the Veteran's high blood pressure readings during service progressively worsened to the point of hypertension. M.B. also stated that the Veteran had informed her that doctors during his active service had not alerted him to his high blood pressure readings. In addition, they did not suggest or advise him to follow any preventative measures such as changing his diet or exercising. During the October 2017 Board hearing, the Veteran indicated that he had been told by hospital corpsmen in Vietnam that his blood pressure was high in 1966 and 1967, but he indicated that he thought it was due to the stressors of the environment. He also reported that he had also been told of high blood pressure when stationed in Hawaii, but he never received treatment. The Board finds that the opinions from Drs. O., M., S., and F. provide great probative value in this case. The doctors have the medical training necessary to opine on the medical questions at issue, and they all indicated that they were familiar with the relevant facts from the Veteran's military and post-service medical history. In addition, the doctors all agreed that although a specific diagnosis of hypertension was not noted during service, there was sufficient evidence to conclude that the Veteran demonstrated identifiable manifestations of the disorder. The evidence of hypertension was strong enough that they believed he should have received treatment for this disorder while on active duty. The record further reflects that the Veteran continued to experience symptoms of hypertension after his discharge that extended to the present appeal period. In addition, M.B.'s letter and the Veteran's October 2017 testimony indicate that while the Veteran had been informed at different times during service that his blood pressure was high, he was unaware that it was problem as he never received treatment. This lack of knowledge provides an explanation for the Veteran's denials regarding a history of high blood pressure during service. It could also be the reason that the April 1995 treatment record stated that the Veteran had no previous history of hypertension. Regardless of the reason for the April 1995 report, it is inaccurate in light of the earlier high blood pressure readings of record; including the ones noted in April 1992 and March 1994. Based on the foregoing, the weight of the evidence supports a finding that the Veteran is entitled to a presumption of service connection. Consequently, service connection for hypertension is granted. 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. As the Board is granting entitlement to service connection for hypertension based on the chronic disease presumption, it is unnecessary to address any other theory of entitlement advanced. ORDER The appeal regarding the issue of entitlement to an increased disability rating in excess of 10 percent for psoriasis is dismissed. Entitlement to service connection for hypertension is granted. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs