Citation Nr: 1805680 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-15 015 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for hypertension, to include as due to Agent Orange (herbicide) exposure. 2. Entitlement to service connection for a neurological disorder, to include chronic immune-mediated demyelinating polyneuropathies (CIDP); amyotrophic lateral sclerosis (ALS); and/or acute/subacute peripheral neuropathy as a result to herbicide exposure. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Davis, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, on behalf of the Oakland, California RO. The Board has recharacterized the Veteran's claim as service connection for a neurological disorder in light of Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In January 2016, a Travel Board hearing was held before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. The Board remanded this appeal in July 2016 for further development. FINDINGS OF FACT 1. The Veteran's essential hypertension was not manifested in service within one year of service separation and is otherwise unrelated to service. 2. The Veteran's neurological conditions, inclusive of CIDP and peripheral neuropathy were not manifested in service within one year of service separation and are otherwise unrelated to service. 3. Hypertension and neurological conditions, inclusive of CIDP and peripheral neuropathy were not caused by exposure to Agent Orange. CONCLUSION OF LAW 1. The criteria for service connection for hypertension, to include as due to Agent Orange exposure, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for a neurological condition, inclusive of CIDP and peripheral neuropathy, to include as due to Agent Orange exposure, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to notify and Assist In this case, neither the Veteran nor his representative has raised any issues with the VA's 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 a duty to assist argument). Service connection criteria Initially, the Board notes that the Veteran has argued that his hypertension and neurological disorder are due to the presumed exposure to Agent Orange in service. Under the relevant laws and regulations, presumptive service connection can be granted for certain diseases due to herbicide exposure, and it is presumed that a Veteran who served in Vietnam during the Vietnam Era, such as this Veteran, was exposed to Agent Orange/herbicides in service. 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Disabilities diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). A. Hypertension Relevant to the Veteran's hypertension claim, the Veteran contends that he has hypertension that is related to his military service, to include herbicide exposure. The Board notes that the Veteran had service in the Republic of Vietnam and herbicide exposure is conceded. However, hypertension is not on the list of diseases, located at 38 C.F.R. § 3.309, for which presumptive service connection is warranted as due to Agent Orange/herbicide exposure in service. 38 C.F.R. §§ 3.307, 3.309. VA has not conceded a relationship between hypertension and Agent Orange, nonetheless, it is significant to note that prior to 2006, the National Academy of Science (NAS) placed hypertension in the "Inadequate or Insufficient Evidence" category. However, in its 2006 Update, 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 (April 11, 2014). Specifically, it 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. A review of the Veteran's service treatment records does not show any complaints, treatment, or diagnosis of hypertension during active duty. During the January 1968 separation examination, the blood pressure reading was 130/100. The Board notes, however that cardiovascular physical examination was unremarkable; and no further work-up was documented. Private treatment records from V.K.G., MD dated from 2004 to 2012 document ongoing treatment for the Veteran's "history of uncontrolled hypertension". On a February 2014 VA Form 21-0820 Report of General Information, the RO documented the Veteran's contention that he was told he had hypertension at discharge from military service and was offered further work up but would need to stay in service for that. The Veteran indicated that he declined and signed a form which he believed was a waiver. He further explained that he saw a physician when he was 27 or 28 years old, after he finished school, and has been on medication ever since then. The Veteran indicated that the physician is deceased and no records of that treatment are available. The Veteran was afforded a VA examination in February 2014. The VA examiner, after examination and review of the available evidence noted that per private treatment reports hypertension was firmly established by the early 1990s. The examiner noted there was only a single abnormal reading at discharge in 1968 and no diagnosis of hypertension was made and the pulse pressure reading certainly suggests it was an erroneous reading. He noted that a heart catheterization as well as echocardiogram in 2006 revealed no changes suggesting longstanding hypertension existed. The examiner concluded that it was less likely than not that the Veteran's hypertension had its onset during military service. During the January 2016 hearing, the Veteran reiterated his contentions that he had hypertension during service, and especially at service separation. Indeed, he indicated that the examiner told him during the January 1968 separation examination that his blood pressure was very high and that in order for the Veteran to be approved for release from active duty, his blood pressure had to be controlled prior to discharge, or in the alternative, he could sign a waiver in order to be discharged. The Veteran indicated that he was ready to be discharged so he signed the waiver. The Veteran indicated that he was formally diagnosed with hypertension in the early 1990's. In a March 2016 letter, the Veteran's private physician P.K., MD noted, in part, that the Veteran developed hypertension while he was 20 years old while on active duty. He indicated that the Veteran complained of dizziness and headaches at the time of the separation examination. The examiner noted that normally people in their 20's do not develop hypertension; however, the Veteran did have a heavy exposure to Agent Orange. While the examiner appears to suggest a relationship between the Veteran's hypertension and his exposure to herbicide, he does not provide rationale to support this conclusion. Also of file is a September 2016 letter from the Veteran's private physician Dr.V.K.G. He noted that the Veteran had been under his care since 2004 and opined that the Veteran's hypertension is due to in-service exposure to Agent Orange. However, this private physician had not review the claims file and offered no rationale for his opinion. In September 2016 and January 2017, the Veteran underwent additional VA examinations. The September 2016 examiner after examining the Veteran and reviewing the claims file, opined that is was less likely than not that the Veteran's hypertension had its clinical onset during service or is related to any incident in service, including conceded in-service exposure to herbicides. The examiner noted that upon exit from service in 1968 that the Veteran had elevated blood pressure levels. However, he provided the rationale that no interim records post service notate hypertension and that it was not until 41 years after service that the Veteran was noted to be hypertensive. The examiner further reasoned that the Veteran had only one elevated blood pressure at his separation examination and that VA and NYHA protocol require at least 2 episodes of elevated blood pressure reading on two different occasions for a diagnosis. He further reasoned that during service there was no information found to support the claim for hypertension. The examiner provided that VA protocol does not support hypertension as a presumptive cause of exposure to herbicides. The Board finds that the January 2017 VA examiner provided a well-reasoned negative nexus opinion and also made effort to reconcile the contradicting medical opinions of record. After examining the Veteran and review of the claims file, the January 2017 VA examiner provided the following: "I have reviewed the conflicting medical evidence and am providing the following opinion: Institute of Medicine. The Veteran and Agent Orange: Update 2014 The National Academies Press p. 907 In reference to hypertension: Epidemiologic 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." Reference: Cypel YS, Kress AM, Eber SM, et al. Herbicide Exposure, Vietnam Service, and Hypertension Risk in Army Chemical Corps Veterans. J. Occup. Environ Med 2016 Nov; 58(11): 1127-1136. He further provided that the study investigators analyzed data of veterans who sprayed defoliant in Vietnam. The data revealed that herbicide-spray history and Vietnam service status were significantly associated with self-reported hypertension. However, the examiner noted that the Veteran did not spray defoliant in Vietnam, so it's not clear if the results of the study pertain to this case, as according the Veteran's DD 214 he was an anti-tank assault man during service. The examiner further provided that there are only two blood pressure readings in the Veteran's service treatment records. His blood pressure reading was 130/80 at enlistment in 1965 and 130/100 at separation in 1968. The examiner noted that the blood pressure measurement of 130/100 at the separation examination was abnormal, however to diagnose hypertension more than one blood pressure measurement should have been done. The examiner further noted that the Veteran has a history of smoking, which is a risk factor for hypertension. He concluded that he respected the positive nexus opinion from the private doctor in reference to the association between the Veteran's hypertension and Agent Orange, but after reviewing all of the information, he could not give an opinion with resorting to speculation. He further provided that hypertension was not clearly diagnosed in 1968 and that blood pressure measurement in the 10 years after the Veteran was released from active service are not available. He also stated that the Veteran has a high risk factor of tobacco use for the development of hypertension and that the literature is suggestive of an association between hypertension and Agent Orange exposure but is not definitive. Initially, since hypertension is not on the list of diseases presumptive to in-service Agent Orange/herbicide exposure, service connection on that presumptive basis under 38 C.F.R. §§ 3.307, 3.309 is not warranted. Also based on the evidence above, the Board concludes that service connection is not warranted on a direct basis for the Veteran's hypertension. The preponderance of the evidence including the silent service treatment records and the evidence first showing it in the early 2000's, which was many years after service, indicates that it was not manifest in service or to a degree of 10 percent within 1 year of separation. The preponderance of the evidence also indicates that it is unrelated to service, to include presumed in-service Agent Orange exposure. Several VA examiners found this after considering the evidence of record and the medical science. The examiner reviewed the recent medical literature and noted that the bulk of the evidence currently supports the conclusion that hypertension is has been related to Vietnam veterans who sprayed defoliant in Vietnam, which the Veteran did not. It was also noted that the Veteran's long history of tobacco use is a known risk factor for hypertension, and herbicide exposure is not a proven risk factor. The Board recognizes the Veteran himself has asserted that he has had hypertension due to Agent Orange exposure since service. However, the Veteran has not been shown to have the background or expertise to provide a competent opinion linking his current hypertension to herbicide agents/Agent Orange exposure. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the Veteran's own statements in this case may not competently address the question of etiology. In conclusion, based on the analysis above, the Board finds that the preponderance of evidence is against the Veteran's claim for service connection for hypertension, to include due to Agent Orange exposure. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). B. Neurological disorder The Veteran contends that he has a neurological disability that is related to his military service, to include herbicide exposure. The record shows that the Veteran first reported neurological symptoms in 2009 and was diagnosed with neuropathy in the upper extremity and chronic immune-mediated demyelinating polyneuropathies (CIDP) in 2010. See third party correspondence received June 2013 at 5 and 14. While Agent Orange exposure is conceded, there is no evidence that peripheral neuropathy was diagnosed and at least 10 percent disabling within one year of discharge from service. Further, CIDP is not on the list of diseases presumptive to in-service Agent Orange/herbicide exposure, service connection on that presumptive basis under 38 C.F.R. §§ 3.307, 3.309 is not warranted Therefore service connection a presumptive basis is not warranted. Alternatively, the Board has considered whether the Veteran is entitled to service connection for peripheral neuropathy and CIDP on a direct basis. As discussed above the first element is met as the Veteran was diagnosed with peripheral neuropathy and CIDP by a private physician in 2010. A VA examiner also provided a peripheral neuropathy diagnosis in September 2016. Thus, the first element of service connection is met. In reference to the second element, the Veteran's in-service exposure to herbicides is conceded. Therefore, this appeal turns on whether a relationship exists between the Veteran's current peripheral neuropathy and CIDP and his in-service herbicide exposure. There are competing medical opinions of record addressing the etiology of the Veteran's neurological conditions. In the Veteran's favor are several private medical of record. In a March 2016 letter, the Veteran's private physician P.K., MD, opined that the Veteran's medical condition is due to the exposure to Agent Orange in the past. He reasoned that no other identifying causes that have been found, therefore exposure to Agent Orange must be the cause of the Veteran's neurological conditions. While the examiner appears to suggest a relationship between the Veteran's neurological disability and his exposure to herbicide, he does not provide an adequate reasoning and did not review the claims file. For this reason, the Board affords Dr. P.K.'s medical opinion has little probative value. Additionally, a positive nexus opinion was provided in a September 2016 letter from the Veteran's private physician Dr.V.K.G. He notes the Veteran had been under his care since 2004 and opined that the Veteran's neuropathy is due to in-service exposure to Agent Orange. However, this private physician also did not review the claims file and offered no rationale for his opinion. For this reason, the Board affords Dr. V.K.G.'s medical opinion little probative value. Against the Veteran's claim is the medical opinion of the September 2016 VA examiner, who after reviewing the file determined that it was less likely as not that the Veteran's neurological condition had its clinical onset in service or is related to any incident in service including conceded in-service exposure to herbicides. He provided the rationale that the Veteran was first diagnosed with a neurological condition in 2009, which was 4 decades post service and that there are no supporting records to support that the Veteran's neuropathy is related to service. Recognizing the Veteran's documented in-service exposure to herbicide, the examiner found that the onset was not in the noted one year time frame post service. The September 2016 VA examiner's report demonstrates that the examiner reviewed the Veteran's history, which would include the Veteran's assertions that his neurological condition is due to exposure to Agent Orange. The Board finds the September 2016 VA examiner's opinion probative. The examiner took into consideration the Veterans reported history and prior medical records. Accordingly, the Board finds that the September 2016 VA examiner's negative nexus opinion more probative than the two positive opinions discussed above. As discussed previously, the private doctors did not review the Veteran's entire claims file nor did they address other factors significant in the diagnosis of this disorder. The Board recognizes the Veteran himself has asserted that his neurological condition is related to Exposure to Agent Orange while service. The evidence of record demonstrates that his first post-service complaints of neuropathy were not reported until 2008. Significantly, during an August 2016 office visit the Veteran reported that his neurological symptoms including atrophy began 11 years ago. The Board adds that the Veteran has not been shown to have the background or expertise to provide a competent opinion linking his current left ankle disability to his in-service injury. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by the Veteran's own statements. In conclusion, based on the analysis above, the Board finds that the preponderance of evidence is against the Veteran's claim for service connection for a neurological disability. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for hypertension, to include as due to Agent Orange (herbicide) exposure is denied. Entitlement to service connection for a neurological disorder, to include chronic immune-mediated demyelinating polyneuropathies (CIDP); amyotrophic lateral sclerosis (ALS); and/or acute/subacute peripheral neuropathy as a result to herbicide exposure is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs