Citation Nr: 1805623 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 10-34 534 ) 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 a result of exposure to herbicide agents, and to include as secondary to service-connected diabetes mellitus, Type II (diabetes). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Nelson, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from January 1966 to January 1968, including combat service in the Republic of Vietnam and his decorations include the Purple Heart Medal and the Combat Infantry Badge. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. This case was last before the Board in September 2017 when it was remanded for a VHA expert medical opinion. That opinion has been rendered and the Veteran has been notified. The case is now before the Board for appellate review. The record before the Board consists solely of electronic records within the Veterans Benefits Management System (VBMS). FINDING OF FACT The Veteran's hypertension was not present until many years after service, is not related to service, to include exposure to herbicide agents, and was not caused by or permanently worsened by the Veteran's service-connected diabetes. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C.A §§ 1101, 1110, 1112, 1116, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a Veteran served for at least 90 days during a period of war and manifests hypertension to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For the showing of 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 opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The term "chronic disease" refers to those diseases, such as hypertension, listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Veterans who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. 38 U.S.C.A. § 1116(a) provides presumptive service connection on the basis of herbicide agent exposure in service for enumerated diseases manifested to a degree of 10 percent or more within a specified time period. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313, 3.318. Hypertension is not among the diseases subject to presumptive service connection on the basis of herbicide exposure. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Health Outcomes Not Associated With Exposure to Certain Herbicide Agents, 72 Fed. Reg. 32,395 (June 12, 2007), 75 Fed. Reg. 81,332 (December 27, 2010), 77 Fed. Reg. 47,924 (August 10, 2012). The Board notes that a presumption of service connection is not the sole method for establishing a claim for service connection for disability due to herbicide agent exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Service connection may be granted for a disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. at 54. Factual Background and Analysis The Veteran asserts that his hypertension is caused by or aggravated by his service-connected diabetes. In the alternative, the Veteran asserts that his hypertension is related to herbicide agent exposure during his service in the Republic of Vietnam. Hypertension is defined as diastolic blood pressure that is predominantly 90 millimeters (mm.) or greater, or systolic blood pressure that is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. To support a diagnosis of hypertension, the blood pressure readings must be taken two or more times on at least three different days. See 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101(Note 1) (2017). As an initial matter, the Board recognizes that the Veteran has a current diagnosis of hypertension. Turning to the Veteran's assertion that his hypertension is secondary to his service-connected diabetes, the Board finds a preponderance of evidence that the Veteran's hypertension is not secondary to his service-connected diabetes. In a December 2002 psychological evaluation treatment note, the Veteran's blood pressure was recorded as 157/92. In a March 2004 orthopedics treatment note, the Veteran reported that he was prescribed Lisinopril by his private physician two weeks ago. The examiner noted that the Veteran's previous blood pressure reading was 161/99 in January 2004. In an April 2014 VA examination, the examiner noted that the Veteran reported having hypertension since 2000. The examiner also noted that the Veteran's treatment records showed documentation for hypertension beginning in 2006. In an October 2016 VA examination, the examiner noted that the Veteran had a notation in his medical treatment records for hypertension in 2006 and that treatment for hypertension, with a prescription for Lisinopril, was documented in 2009. A March 2008 private physician's report, submitted by the Veteran, stated that the Veteran was diagnosed for diabetes on April 15, 2006. Additionally, this private physician's report states, "The veteran currently has NO complications that are directly due to diabetes mellitus." (Capitalized bold in the original document). VA examiners provided probative opinions that the hypertension was not caused by or aggravated by the service-connected diabetes. The medical evidence shows that the Veteran had high blood pressure readings several years before he was diagnosed with diabetes. Evaluating the medical evidence in a light most favorable to the Veteran, the diagnoses for hypertension and diabetes occurred in the same year, 2006. There is no medical opinion of record suggesting that the hypertension was caused by or aggravated by the service-connected diabetes. Therefore, service connection for hypertension as secondary to service-connect diabetes is not warranted. When this case was before the Board in September 2016, it was remanded for additional development to evaluate the Veteran's presumptive exposure to herbicide agents and his claim for service connection for hypertension. Specifically, the Board asked the examiner to address whether the Veteran's hypertension, although not recognized by VA as an herbicide agent exposure presumptive disease, nonetheless met a "limited or suggestive evidence of association" for hypertension due to herbicide agent exposure noted in "Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010." 77 Fed. Reg. 47,924-47,928 (2012). In an October 2016 VA opinion, the examiner responded to the above question, and based upon a careful review of the Veteran's file and the National Academy of Sciences report, concluded that the Veteran's hypertension was not caused by herbicide agent exposure. The examiner opined that the Veteran's hypertension was not related to herbicide agent exposure, but rather to the Veteran's long-standing, post-service, hypothyroidism. In September 2017, the Board determined that a VHA expert opinion was necessary to fully develop the Veteran's claim, prior to adjudication. The VHA expert opined that the evidence did not support the Veteran's assertions that his hypertension was caused by or aggravated by the Veteran's service-connected diabetes, as, "the greatest association of diabetes and hypertension is in relation to renal/kidney changes. The veteran's medical record does not demonstrate any effect on his kidney function at the time of this report." Regarding the possibility of service connection for hypertension on a direct basis, the VHA expert noted that the first well documented medical diagnosis of hypertension was in 2006, more than 38 years after the Veteran's service, which is well past the one-year period for the manifestation of a chronic disease required in 38 C.F.R. §§ 3.307, 3.309. Finally, turning to the Veteran's assertion that his hypertension is related to his presumed exposure to herbicide agents in service, the expert noted that hypertension is not a disease that is presumed to be associated with that exposure. Moreover, the expert concluded that, "from a medical perspective the time frame of greater than 38 years between the time of exposure to Agent Orange to the time of onset of hypertension condition would be considered fairly inconsistent in regards to a causal exposure condition." The VHA expert concluded, after a thorough review of the file and the relevant medical literature that the Veteran's hypertension was not directly related to his time in service; was not secondarily related to his service-connected diabetes, and was not caused by exposure to Agent Orange. As the VHA expert carefully reviewed the Veteran's file and provided rationales for his medical opinions, the Board finds the VHA expert's opinion probative. In sum, there is no competent evidence of record presenting a relationship between the Veteran's hypertension and his military service, to include herbicide agents or secondary to his service-connected diabetes. The Veteran did not have a diagnosis or documentation of hypertension within one year of separating from the service, nor is there any documentation in his service treatment records of hypertension. The Veteran has also offered no other specific arguments in support of his claim. In light of the above, the Board finds that service connection for hypertension is not warranted. ORDER Service connection for hypertension is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs