Citation Nr: 18141023 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 10-27 032 DATE: October 9, 2018 ORDER Entitlement to service connection for a neck disability is denied. Entitlement to service connection for chronic obstructive pulmonary disease (COPD is denied. Entitlement to service connection for hypertension is denied. FINDINGS OF FACT 1. The Veteran served in Vietnam and is presumed to have been exposed to herbicide agents, such as Agent Orange. 2. The Veteran’s neck disability, COPD and hypertension were not incurred in or otherwise related to active service; cervical spine arthritis and hypertension did not manifest to a compensable degree within one year of separation from service; and a neck injury, COPD and hypertension were not caused or aggravated by service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a neck disability have not been met. 38 U.S.C. §§ 1110, 1116, 5103; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for COPD have not been met. 38 U.S.C. §§ 1110, 1116, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1116, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from December 1966 to July 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2008 and May 2009 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claims on appeal in October 2016 and October 2017 for additional development. The Board’s remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish 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 Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may be established for chronic diseases, to include hypertension and arthritis, manifesting to a certain degree within a year after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). In addition, service connection may be established on a presumptive basis for certain diseases resulting from exposure to herbicide agents, such as Agent Orange, if a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, absent affirmative evidence to establish that the Veteran was not exposed to such herbicide agent during that service. See 38 C.F.R. §§ 3.307(a)(6)(iii). If a Veteran is presumably exposed to an herbicide agent, then there is a presumption of service connection for certain enumerated diseases. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a) and 3.309(e). COPD and arthritis are not included in such enumerated diseases. Secondary service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a) (2017). Secondary service connection includes the concept of aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). 1. Entitlement to service connection for a neck disability. The Veteran contends that his neck disability is related to his military service. The record also reasonably raises the theory that his neck disability could be secondary to treatment for his service-connected disabilities, specifically his service-connected heart disability. For the reasons that follow, the Board finds that service connection for a neck disability is not warranted. At the outset, the Board notes that a neck injury or chronic condition was not noted in service. The Veteran’s service treatment records (STRs) are absent of any complaints, treatment, or diagnoses related to a neck condition. The Report of Medical Examination at separation shows the spine and musculoskeletal system as normal. The Veteran also did not report any neck issues on his Report of Medical History at separation. Consistent with this history, the Veteran has not specifically asserted that he injured his neck in service, or that he developed a chronic condition in service. The Board notes that on the Veteran’s November 2007 Application for VA Compensation or Pension (VA Form 21-526), he indicated that he was claiming service connection for a ‘neck injury’ and that the onset of his disability was in February 2007. While there is no evidence of a neck injury or disability in service, a current neck disability is established. As noted in the Board’s October 2017 Remand, the Veteran had his C3-C7 vertebrae fused in October 2007 to treat cervical myelopathy, according to contemporaneous non-VA treatment records. A March 2010 examination report showed the Veteran has a surgical scar on his neck that he attributes to a stent procedure in 1980, which the Board noted could potentially have been a procedure to treat his heart condition which has subsequently been service-connected, raising the possibility that the Veteran’s neck pain and stiffness is related to treatment for his heart condition. A February 2015 VA treatment note (and several others) reference a 1999 neck surgery, and a non-VA MRI conducted in February 2007 documents a neck surgery prior to the October 2007 fusion of the Veteran’s vertebrae. The Board also notes that a diagnosis of cervical spine degenerative arthritis was rendered by a VA examiner in February 2018. Turning to the third element, a causal nexus, the Board finds this requirement is not established. Although the Veteran is presumed to have been exposed to herbicide agents during his service in Vietnam, he cannot establish entitlement to service connection for his neck disability on a presumptive basis under 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.309(e), because arthritis is not one of the enumerated diseases. As there is no evidence showing initial manifestations of arthritis in service, or to any degree within one year of separation from service, the one-year presumption for arthritis under 38 C.F.R. §§ 3.307 and 3.309 is not an avenue for service connection, nor are the provisions of 38 C.F.R. § 3.303(b) pertaining to chronicity or continuity of symptomatology. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309. The evidence also does not reflect, nor does the Veteran contend, that arthritis was noted in service or within a year of discharge in June 1971. The fact that the Veteran cannot establish entitlement to service connection for his neck disability on a presumptive basis does not preclude him from establishing entitlement on a direct incurrence or other basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Pursuant to the October 2017 Remand, the Veteran underwent a VA examination for his neck disability in February 2018 to determine whether his neck disabilities were related to service or his service-connected heart disability, to include any treatment related to those conditions. Following the examination and record review, the examiner provided an unfavorable opinion. The examiner opined that it was less likely than not that the Veteran’s current neck disability was caused or aggravated beyond its natural progression by any of his service-connected disabilities, including his heart disability. The examiner explained that based on a review of current peer-reviewed literature, he could not find any literature that reports any objective evidence that any of the Veteran’s current service-connected conditions caused or had a causal association with his neck disability. Additionally, based on a review of the same literature, the Veteran’s medical records, and known pathophysiology of his current service-connected conditions, the examiner concluded that the Veteran’s neck disability was not aggravated by any of his service-connected disabilities. The examiner also opined that the Veteran’s neck disability was less likely than not incurred in or caused by his active service. The examiner explained that there was no documentation of any in-service neck injury or complaints of neck pain in service or at separation. The examiner also explained he could not find documentation or objective clinical evidence of an in-service injury or event that is expected to have the long-term sequelae of causing early or premature onset of cervical degenerative arthritis. Further, the examiner noted the Veteran’s post-service occupations involving physical labor, his ability to ride motorcycles, and the Veteran’s age at the time of his neck surgery in 2007, and subsequently explained that advanced age is one of the strongest risk factors associated with osteoarthritis. The Board finds the February 2018 examiner’s opinion is highly probative as it was based on the Veteran’s history (as found on review of the claims file, current examination and clinical interview) and peer-reviewed literature, and contained clear conclusions supported by a cogent rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no competent evidence to the contrary. While the Veteran believes his neck disability is related to an in-service injury, event, or disease; or to a service-connected disability, he is not competent to provide such a nexus opinion in this case. This issue is medically complex, as it involves internal disease processes and requires knowledge of interpretation of complicated diagnostic medical testing, which he is not shown to possess. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Based on the foregoing, service connection for a neck disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 2. Entitlement to service connection for COPD. The Veteran contends that his COPD is related to his military service, specifically his exposure to herbicide agents. The Veteran’s current diagnosis of COPD is well documented in his VA treatment records. The Veteran’s STRs do not show any complaints, treatment, or diagnoses pertaining to a respiratory condition. The Veteran did not report any respiratory issues on his Report of Medical history at separation, and his Report of Medical Examination at separation noted his lungs and chest as normal. However, the Veteran is presumed to have been exposed to herbicide agents, including Agent Orange, during his service in Vietnam. Despite the Veteran’s presumed exposure, he cannot establish entitlement to service connection for COPD on a presumptive basis under 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e), because COPD is not one of the enumerated diseases. While the Veteran is not able to establish entitlement to service connection for COPD on a presumptive basis, he is not precluded from establishing entitlement on a direct incurrence or other basis. See Combee, 34 F.3d at 1039. Based on a review of the evidence, service connection is not warranted on a direct or secondary basis. Pursuant to the October 2017 Remand, the Veteran underwent a VA examination for his COPD in February 2018 to determine whether this disability is related to service or his service-connected disabilities. The VA examiner provided an unfavorable opinion. The examiner explained that there was no documentation or objective clinical evidence of an in-service injury or event that is expected to have the long-term sequelae of COPD. Based on a review of current peer-reviewed literature, the examiner also explained that there is inadequate or insufficient evidence to determine whether an association exists between herbicide exposure and respiratory disorders, including COPD. Given the foregoing, the examiner opined that the Veteran’s COPD was less likely than not incurred in or caused by the Veteran’s military service, including his exposure to herbicide agents. The examiner further explained that none of the Veteran’s service-connected conditions are known to have a causal association with COPD or to worsen or aggravate COPD. After a review of current peer-reviewed literature, the examiner could not find any literature that reports any objective evidence that any of the Veteran’s current service-connected conditions cause or worsen COPD. Thus, the examiner opined that it was less likely than not that the Veteran’s COPD was proximately due to, the result of, or aggravated beyond its natural progression by any of the Veteran’s service-connected conditions. The Board finds these opinions, supported by a rationale based on an accurate medical history with clear conclusions and supporting data, is highly probative. Nieves-Rodriguez, 22 Vet. App. at 304. There is no competent evidence to the contrary. The Board acknowledges the Veteran’s assertion that his COPD is related to an in-service injury, event, or disease, including his exposure to herbicide agents, such as Agent Orange. However, this issue is medically complex, as it involves internal disease processes and requires knowledge of interpretation of complicated diagnostic medical testing. As a lay person, without specialized medical knowledge and/or training, the Veteran is not competent to provide a nexus opinion in this case. Jandreau, 492 F.3d at 1377 n.4. Since the competent and probative evidence of record fails to indicate that the Veteran’s COPD had onset in, or is otherwise related to service including because of presumed exposure to herbicide agents; or, that it was either caused or aggravated by service-connected disabilities, service connection is not warranted. As the preponderance of the evidence is against the claim under any applicable theory of service connection, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. 3. Entitlement to service connection for hypertension is denied. The Veteran contends that his hypertension is related to his military service, to include as secondary to his presumed herbicide agent exposure. In the alternative, he asserts that it is secondary to his service-connected diabetes mellitus or other service-connected disabilities. See February 2009 Statement in Support of Claim and September 2016 Brief. Service treatment records are absent for treatment or diagnosis of hypertension. A diagnosis of hypertension was not shown to have manifested to a compensable degree within a year of service discharge. The Veteran previously underwent fee-based VA examinations in March 2010 and September 2012 for his hypertension. The March 2010 examiner stated that the Veteran’s hypertension was not caused by his diabetes, because diabetes does not cause hypertension. However, this examiner stated that diabetes aggravates hypertension because uncontrolled diabetes has an effect on the vascular system that aggravates hypertension. At the September 2012 examination, the same examiner opined that the Veteran’s hypertension was permanently aggravated by the diabetes. A rationale was not provided. In a December 2016 VA opinion, a different VA examiner was unable to find any clinical evidence that the Veteran’s hypertension was caused or aggravated by his diabetes, but did not explain why he disagreed with the September 2012 examiner’s assessment. Due to this lack of explanation, the Board remanded the appeal for a clarifying addendum opinion in October 2017. In an addendum received in January 2018, the December 2016 VA examiner opined that the Veteran’s hypertension was not aggravated beyond its natural progression by the service-connected diabetes, or any of his service-connected disabilities. He provided a lengthy and detailed clinical rationale for this opinion. The examiner explained that per review of the medical records, the Veteran was diagnosed with coronary artery disease and peripheral artery disease in 1999 and 2005, respectively. Both conditions occurred at least two years prior to the Veteran being diagnosed with diabetes. Further, per review the Veteran was diagnosed with hypertension in or around 1985, over 20 years prior to his diagnosis of diabetes Type II. The examiner noted that his review of current peer-reviewed clinical literature showed the primary factor relating to the diabetes possibly contributing to hypertension is the development of diabetic nephropathy. However, per review of available medical records, the Veteran has never been diagnosed with diabetic nephropathy. The examiner further explained that per literature review, peripheral vascular disease which involves the development of increased arterial stiffness is also a possible risk factor for diabetes contributing to hypertension. However, for this Veteran, not only was his hypertension diagnosed years prior to the onset of diabetes, the conditions of peripheral vascular disease and coronary artery disease (which also can involve increased arterial stiffness) were diagnosed years prior to the onset of the diagnosis of diabetes. Hence, the Veteran's diabetes did not cause increased arterial stiffness for him. The Veteran already had that risk factor prior to having diabetes. Finally, per review of pharmacy records dating back to 2011, the Veteran's blood pressure has been well-maintained with the same medications for at least 6 years providing further evidence that his hypertension has not been worsened by diabetes, peripheral vascular disease, or his other service-connected conditions. The examiner noted, in summary, the known risk factors that are known to contribute to the development or worsening of hypertension for diabetics includes diabetic nephropathy and reduced arterial distensibility (also called increased arterial stiffness). The Veteran has never had the risk factor of diabetic nephropathy and the risk factor of reduced arterial distensibility is not due to diabetes based on clinical documentation showing objective evidence that this condition was present years prior to the onset of diabetes. The examiner concluded by indicating that based on his review all the medical records, he was unable to find any clinical documentation or objective evidence that Veteran's hypertension was caused by or worsened in any manner by his diabetes or any of his service-connected disabilities. For the reasons that follow, the Board finds that service connection for hypertension is not warranted. Although the Veteran is presumed to have been exposed to herbicide agents during his service in Vietnam, he cannot establish entitlement to service connection for his hypertension on a presumptive basis under 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.309(e), because hypertension is not one of the enumerated diseases. Hypertension was not diagnosed in service or within a year of discharge. As there is no evidence showing initial manifestations of hypertension in service, or to any degree within one year of separation from service, the one-year presumption under 38 C.F.R. §§ 3.307 and 3.309 is not an avenue for service connection, nor are the provisions of 38 C.F.R. § 3.303(b) pertaining to chronicity or continuity of symptomatology. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309. The fact that the Veteran cannot establish entitlement to service connection for his hypertension on a presumptive basis does not preclude him from establishing entitlement on a direct incurrence or other basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the competent and most persuasive evidence shows the Veteran’s hypertension is not related to service or to a service-connected disability. In this respect, the Board finds the December 2016 and January 2018 VA opinions to be most probative on the question of causal nexus. These opinions, particularly the addendum received in 2018, are highly persuasive because they are supported by a thoroughly-explained rationale which was based on an accurate medical history and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304. These opinions considerably outweigh the 2010 opinion due to the thoroughness of the opinion and rationale. The 2012 opinion was not supported by a rationale, which diminishes its probative weight. The Board acknowledges the Veteran’s assertion that his hypertension is related to service, including his exposure to herbicide agents, or in the alternative to his service-connected disabilities. However, this issue is medically complex, as it involves internal disease processes and requires knowledge of interpretation of complicated diagnostic medical testing. As a lay person, without specialized medical knowledge and/or training, the Veteran is not competent to provide a nexus opinion in this case. Jandreau, 492 F.3d at 1377 n.4. In sum, the competent and most probative evidence of record fails to indicate that the Veteran’s hypertension had onset in, or is otherwise related to service; or, that it was either caused or aggravated by service-connected disabilities. Therefore, service connection is not warranted. As the preponderance of the evidence is against the claim under any applicable theory of service connection, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mortimer, Associate Counsel