Citation Nr: 18141121 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 08-11 646 DATE: October 9, 2018 ORDER Service connection for hypertension, including as due to herbicide exposure, is denied.   FINDINGS OF FACT 1. The Veteran had active service in Vietnam and is presumed to have been exposed to herbicides. 2. Hypertension did not manifest in service or to a compensable degree within one year of separation from active service, and is otherwise unrelated to service, including as due to exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for hypertension, including as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1965 to September 1967, with service in the Republic of Vietnam. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board initially remanded this matter for additional development in April 2012 and December 2013. Thereafter, in July 2014, the Board denied service connection for hypertension. The Veteran then appealed the denial to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a July 2015 Joint Motion for Remand (JMR), the Court vacated the Board’s decision, and remanded this matter for further action consistent with the terms of the JMR. Accordingly, the Board remanded this matter in November 2015. In October 2016, the matter was referred to the Veterans Health Administration (VHA) for an advisory opinion. The advisory opinion was obtained and the Veteran, along with his representative, were given the opportunity to provide any comments with respect to the opinion. Subsequently, the Board remanded this matter once more in August 2017 ; this development has been completed. The Board will now proceed with adjudication of this matter. Entitlement to service connection for hypertension, including as due to herbicide exposure. The Veteran asserts that his hypertension is related to service. Specifically, he contends that his hypertension was diagnosed within one year after separation from service or is due to his exposure to herbicide agents. See October 2005 correspondence; April 2012 VA examination. A. Applicable Law 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, 1131; 38 C.F.R. § 3.303(a). Generally, in order 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). Service connection may be established for a current disability based on a presumption under the law that certain chronic diseases, to include hypertension, manifesting to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and develops certain chronic diseases, which manifest 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. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. 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, shall be presumed to have been exposed during such service to certain herbicide agents, to include the commonly referred herbicide agent, Agent Orange, absent affirmative evidence to establish that the Veteran was not exposed. See 38 U.S.C. § 1116(f); 38 C.F.R. §§ 3.307(a)(6)(iii). If a Veteran was exposed to an herbicide agent (to include Agent Orange) during active service and has contracted an enumerated disease, such Veteran is entitled to a presumption of service connection for such disease even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). When a claimed disorder is not included as a presumptive disorder under 38 C.F.R. § 3.309(e), direct service connection may nonetheless be established by evidence demonstrating that the disease was in fact “incurred” during service. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). B. Discussion In this case, the Veteran has a current diagnosis for hypertension for VA compensation purposes. See April 2012 VA examination; see also 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. Therefore, the question for the Board is whether his current hypertension is due to service. The Veteran’s entrance examination in June 1965 reflected a high blood pressure reading of 160/86. Four additional readings were taken the next day, which were found to be within normal systolic and diastolic ranges. There was no diagnosis of hypertension. No additional defects were noted. On his entrance Report of Medical History, he reported that he was in good health and denied having high or low blood pressure. His blood pressure reading was not noted to be abnormal during a hospitalization stay for another condition in January 1966. There were no other service treatment records for complaints of, or treatment for elevated blood pressure readings. His clinical evaluation at the time of separation in September 1967 was not noted to be elevated. In the corresponding Report of Medical History, he reported that he was in good health and denied having high or low blood pressure. There were no clinical findings for either having elevated blood pressure or hypertension within one year after separation from service. In June 1996 and June 1997, private treatment records showed findings of elevated blood pressure readings. The first documented diagnosis was made by his private physician in August 1998 for “urgent hypertension.” In March 1999, a follow-up appointment with his private physician showed that he still had elevated blood pressure readings. He reported that he had a real weakness for salt in his food but made an effort to eat healthy. Pursuant to the April 2012 Board remand, the Veteran was afforded a VA examination that same month. He reported that he was not treated for or diagnosed with hypertension during service. He was initially diagnosed with hypertension in 1968 during a routine private physical examination. The examiner provided a negative nexus opinion on a direct basis, but did not discuss his exposure to herbicide agents. As a result, the Board remanded for an addendum opinion in December 2013. Instead, the Veteran was afforded an in-person VA examination in January 2014. At this examination, he reported that he was diagnosed with hypertension in the 1970s. The examiner provided another negative nexus opinion on a direct basis and again, did not address the Veteran’s exposure to herbicide agents. In August 2015, the Veteran submitted a letter by Dr. J.S.K. He noted the Veteran’s exposure to herbicide agents during service and stated that he began medical therapy for hypertension approximately 10 years after. Dr. J.S.K. believed that there may well be an association between exposure to herbicide agents, specifically, Agent Orange, and the early development of severe hypertension. However, Dr. J.S.K. did not provide any rationale for his opinion. In addition, due to the speculative nature of his opinion, it has little, if any, probative value. After the Court vacated the January 2014 Board denial on this matter, the Board remanded for another VA examination in November 2015. At the April 2016 VA examination, the Veteran reported that he was found to have elevated blood pressure in 1968 and then was treated with medication in 1972. The examiner found that the Veteran’s hypertension was less likely than not related to service on a direct or presumptive basis for chronic diseases, as there was no diagnosis made during service or within one year after separation from service. The rationale was that he went on medication for his hypertension in 1972. The examiner found that a review of medical literature did not show a causal link between Agent Orange exposure and the development of hypertension. The examiner cited that National Academy of Sciences (NAS) report on Veterans and Agent Orange: Update 2012 (Update 2012) did not show a causal link between Agent Orange and the development of hypertension. See 79 Fed. Reg. 20,308 (Apr. 11, 2014). Subsequently, the Board requested a VHA medical opinion in October 2016. The Board found that the prior medical opinion did not address whether the Veteran’s hypertension condition was at least as likely as not caused by Agent Orange exposure during service. In February 2017, an advisory opinion was provided after reviewing the Veteran’s claims file, previously rendered opinions regarding this claim, and an online clinical support resource that provided the most current clinical guidelines and information regarding disease etiology. The VA expert found that the Veteran’s hypertension condition was less likely than not related to exposure to herbicide agents during service. The rationale was that Update 2012 categorized hypertension as having limited or suggestive evidence of association with herbicide agent exposure. A review of the online clinical support resource did not include herbicide agents as a potential cause for hypertension in its long list of potential causes. Also, the Veteran reported treatment for his hypertension in 1972; he was diagnosed with this condition 5 years after service, which suggests a lack of correlation between Agent Orange exposure and a common diagnosis of benign essential hypertension. The VA physician noted that the Veteran did not have obvious risk factors, but most cases of hypertension did not have a clear etiology. The VA physician also noted that Dr. J.S.K. did not reference any specific medical literature to support his opinion that hypertension may be caused by Agent Orange exposure. Submissions of any medical literature regarding such correlation could be not found. In June 2017, the Veteran requested a delay in adjudicating this matter, as he had a follow-up appointment with Dr. J.S.K. to discuss the February 2017 VHA opinion. The Board remanded this matter once more in August 2017 in order to obtain that record and any outstanding medical records. Since then, the medical records from Dr. J.S.K. were obtained. Reviewing them, however, tends to undermine the evidentiary value of this doctor’s opinion. For instance, in several medical records, including in August 2015, this doctor observed that the Veteran “brings it to my attention that there may be some association between hypertension starting at an early age and exposure to Agent Orange.” He also wrote “[m]ay be related to [A]gent [O]range.” These qualifying statements show that this doctor’s opinion was entirely based on the Veteran’s own information and not any independent medical evidence indicating a relationship to Agent Orange. This corresponds to the expert’s opinion. After a careful review of the record, the Board finds that service connection for hypertension is not warranted. As a threshold matter, the Veteran’s Form DD 214 reflected service in the Republic of Vietnam. As such, exposure to herbicide agents is conceded. However, hypertension is not a disease that VA recognizes as presumptively related to exposure to herbicide agents. Thus, presumptive service connection for hypertension as a result of any herbicide agent exposure is not warranted. See 38 C.F.R. §§ 3.307, 3.309(e). There also is no competent evidence to show that hypertension was noted in service or manifest to a compensable degree within one year of separation from service. The Veteran’s service treatment records, other than the single elevated blood pressure reading at the time of entry, did not show treatment for high blood pressure or provide a diagnosis for hypertension. He reported that he was in good health at the time of separation. His separation examination was normal on clinical evaluation. The Veteran reported that he was diagnosed with hypertension in 1968. However, a medical record has not been submitted to support this claim. To this extent, the Veteran’s statement is not considered reliable historical information as his statements have been inconsistent over time as it concerns the initial onset of his hypertension. See April 2012, January 2014, and April 2016 VA examinations. At present, the initial clinical finding for elevated blood pressure remains June 1996. An objective finding for hypertension was not until August 1998, which is many years after service. Accordingly, presumptive service connection, as a chronic disease, is not warranted. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Although service connection for hypertension is not established on a presumptive basis, the Board must consider whether service connection can be established on a direct basis. See Combee, supra. Given the above, the Board finds that service connection has not been established on a direct basis. As an initial matter, the Board looks to the National Academy of Sciences (NAS) report titled Veterans and Agent Orange: Update 2012. It identified hypertension as having “Limited or Suggestive Evidence of an Association” with Agent Orange exposure. See 79 Fed. Reg. 20308 (April 11, 2014). NAS has defined this category of association 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 20309. Although categorized as such by NAS, VA could not establish a presumption of service connection for hypertension because “the Secretary has determined that the available evidence does not at this time establish a positive association between herbicide exposure and hypertension that would warrant a presumption of service connection.” Id. 20310-11. The criteria for establishing a presumption of service connection are that “the credible evidence for the association is equal to or outweighs the credible evidence against the association.” See id. at 20308. Stated differently, by saying that a presumption of service connection could not be established for hypertension, VA was determining that the medical and scientific evidence is not at least in equipoise in establishing such a causal relationship. Consequently, while a positive relationship between Agent Orange exposure and hypertension is a remote possibility, such a relationship is too speculative at present to indicate such a relationship in the instant appeal without competent persuasive medical evidence otherwise indicating that such a relationship exists between the Veteran’s hypertension and his exposure to herbicides. See 38 C.F.R. § 3.102 (a reasonable doubt is one “within the range of probability as distinguished from pure speculation or remote possibility.”); Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009). As this appears to be the highest level of expert medical-scientific review on this subject, it is rather strong evidence tending to weigh against a finding that the Veteran’s hypertension is related to Agent Orange. The remaining probative evidence does not show that the Veteran’s hypertension had onset in service or was more likely than not caused by exposure due to herbicide agents. The January 2014 and April 2016 VA examiners found that a diagnosis was not made for hypertension and was not shown until 1972, which was 5 years after service. The February 2017 VHA advisory opinion found that the Veteran’s hypertension was not caused by exposure to herbicide agents, as 1) the NAS Update 2012 categorized hypertension as having limited or suggestive evidence of association with herbicide agents; 2) the online clinical support resource did not include herbicide agents as a potential cause for hypertension; and 3) submissions of any medical literature regarding such correlation could not be found. The VA medical opinions are competent evidence as to nexus, and are the most persuasive in this case for service connection on a direct basis. The February 2017 VHA opinion is most persuasive for service connection as due to exposure to herbicide agents. In this respect, the VA physician based his opinion on his clinical experience and medical expertise, a review of the current medical literature, consideration of Up to Date, and Update 2012, and established medical principles. The Board finds these medical opinions highly probative. In a September 2018 appellate brief, the Veteran’s representative argued that the opinion is inadequate because he only reviewed VBMS for his medical literature review. This is incorrect. The expert specifically stated that he reviewed “Up to Date, which is an excellent tool for following the most current clinical guidelines as well as information regarding disease etiology.” Although the expert did state that he could find “no submission of any articles to that effect in the material available for review in VBMS,” this referred to his review of the information underpinning the August 2015 opinion by Dr. J.S.K. As such, this expert medical opinion remains the most probative evidence of record. The Board has also considered the Veteran’s submission of regarding Vietnam Veterans and Agent Orange and its symptoms and effects. However, these articles showed that they were not applicable to the Veteran. These articles do not increase the likelihood that the Veteran’s hypertension is due to service, including his Agent Orange exposure. One of them entitled Vietnam Veterans and Agent Orange Exposure appears to be pamphlet, but is from an unknown source. In any event, it indicates that the percentage of diagnosis for Vietnam Veterans in VA’s Agent Orange Registry was 11.2%. Other than stating this correlation, it provided no indication of causation. It is well understood and commonly accepted that a correlation does not mean a causation. Thus, this information does not increase the likelihood of a nexus. This is especially true considering the most recent publication by the NAS, as considered in VA’s Federal Register notice, as discussed herein above, which found insufficient evidence of a causative relationship. The Veteran also submitted a November 2016 article from ProPublica titled New Study Could Pressure VA to Expand Agent Orange Benefits. It identified a “study, published last week by VA researchers in the Journal of Occupational and Environmental Studies Medicine, [which] found a higher rate of hypertension among members of the Army Chemical Corps who handled Agent Orange during the war compared to those who didn’t.” It stated that “[i]t’s unclear if the results from the Army Chemical Corps apply to other Vietnam veterans, the researchers said.” This article went on to discuss VA’s ongoing decision to omit hypertension as a presumptive disease for Agent Orange exposure. The Board finds that this ProPublica article is somewhat more probative. However, its evidentiary value is limited here for two reasons. First, it specifically studied those who handled Army Chemical Corps, and it identified this as a limitation of the study. The Veteran here was not in the Army Chemical Corps, so it is not clear to what extent this information applies more broadly, including to his case. Second, as with the prior article, this study only indicates a correlation without establishing causation. To this extent, the Board finds the VHA expert’s opinion more probative as he considered the individual facts of this Veteran’s case and reviewed the most up-to-date information concerning the potential risk factors for hypertension. Thus, even if this article (or, more precisely, the underlying VA study) indicates a potential relationship between Agent Orange and hypertension, that relationship remains too tentative at present to make such a nexus at least as likely as not. The Veteran also submitted information from a Veterans’ advocacy group listed elevated blood pressure under “Agent Orange symptoms and effects.” This is not a medical or scientific study, and the source of this information is not provided. Therefore, it cannot be considered probative. The Board has considered the Veteran’s lay contentions regarding the etiology of his hypertension. However, the etiological questions here are not capable of lay observation, within the common knowledge of a lay person, or otherwise within the competence of a non-medical expert as they require expert consideration of the nature of the Veteran’s in-service symptoms; his history of Agent Orange exposure; his post-service symptomatology; and the medical significance of these factors in the context of his current condition. See Fountain, 27 Vet. App. at 274-75; Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). Thus, his statements cannot constitute competent evidence tending to increase the likelihood of a nexus to service. See Fountain, 27 Vet. App. at 274-75. Ultimately, the Board affords greater weight to the VA medical opinions which are competent and persuasive. The VA examiners are medical professionals who reviewed the claims file, considered and discussed the relevant clinical findings and Veteran’s history, and provided cogent rationales to support the conclusions reached. In addition, the opinions of the VA examiners are not contradicted by any other competent medical opinion of record. The competent and credible evidence of record indicates that the Veteran's hypertension is not etiologically related to service under any applicable theory of service connection. In reaching this determination, the Board has considered 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; 38 C.F.R. §3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Tang, Associate Counsel