Citation Nr: 18144497 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 15-23 202A DATE: October 24, 2018 ORDER Entitlement to service connection for pulmonary arterial hypertension, to include as due to herbicide agent exposure or as secondary to service connected diabetes mellitus, is denied. FINDING OF FACT The Veteran’s pulmonary arterial hypertension is neither proximately due to nor aggravated beyond its natural progression by his service-connected diabetes mellitus, is not otherwise related to an in-service injury, event, or disease and did not manifest to a compensable degree within one year of service discharge. CONCLUSION OF LAW The criteria for service connection for pulmonary arterial hypertension, to include as due to herbicide agent exposure are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from November 1967 to July 1971. This matter comes before the Board of Veterans Appeals (Board) on appeal from a July 2014 rating decision of the Denver, Colorado Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2017, the Board remanded the instant matter to the agency of original jurisdiction (AOJ) with instructions to further develop the case prior to final appellate review. The case was then returned to the Board for final review and disposition. PULMONARY ARTERIAL HYPERTENSION Pertinent Statues and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may be presumed for certain diseases if a veteran served 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(a). If a disease is not on the list of presumptive diseases associated with exposure to Agent Orange, service connection may still be established by showing that it was in fact casually linked to such exposure. See 38 U.S.C. §§ 1113(b), 1116; 38 C.F.R. § 3.303, 3.309(e); see Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). As relevant to the instant case, pulmonary arterial hypertension is not included in the list of diseases acknowledged to be presumptively related to exposure to herbicide agents. Notwithstanding the foregoing presumption, a veteran is not precluded from establishing service connection with proof of direct causation. 38 U.S.C. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331. 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). In this regard, the Veteran’s pulmonary arterial hypertension is not considered a chronic disease subject to presumptive service connection and, therefore, such laws and regulations are inapplicable to the instant claim. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for pulmonary arterial hypertension. The Veteran contends that his pulmonary arterial hypertension is related to his military service, to include exposure to herbicide agents in the Republic of Vietnam. In the alternative, he claims that it is secondary to his service-connected diabetes mellitus. As the Veteran served within the statutory period of January 9, 1962, to May 7, 1975 in the Republic of Vietnam, it may be presumed that the Veteran was exposed to herbicide agents coincident with such service. 38 C.F.R. § 3.307(a). According to the July 2018 VA examination, the Veteran is currently diagnosed with pulmonary arterial hypertension. He was first diagnosed and treated for pulmonary arterial hypertension in November 2012. Service treatment records were negative for complaints, treatments or diagnoses related to pulmonary arterial hypertension. Moreover, the service treatment records do not show a pattern of elevated blood pressure levels or a diagnosis of pulmonary arterial hypertension at the time of separation. The Board concludes that, while the Veteran has a current diagnosis of pulmonary arterial hypertension, and evidence shows that service in the Republic of Vietnam occurred garnering the presumption of exposure to herbicide agents, the preponderance of the evidence weighs against finding that it is proximately due to or the result of his service, that it was caused by his service connected diabetes mellitus or that it was aggravated beyond its natural progression by his service connected diabetes mellitus. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The Board has first considered whether service connection is warranted on a presumptive basis. However, pulmonary arterial hypertension is not one of the qualifying chronic or herbicide agent diseases listed under 38 C.F.R. §§ 3.309(a), (e), or 3.307. Moreover, pulmonary arterial hypertension is specifically excluded as being part of ischemic heart diseases. Therefore, service connection is not warranted on a presumptive or continuity of symptomology basis. 38 C.F.R. §§ 3.309(a), (e), 38 C.F.R. 3.307. Therefore, this case turns on the question of whether pulmonary arterial hypertension is nevertheless casually linked to the Veteran’s service, to include his in-service herbicide agent exposure, on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). However, the preponderance of the evidence is against finding that the Veteran’s pulmonary arterial hypertension is related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Post service treatment records show that the Veteran retired from the service, returned home and then started his own construction company. Lay statements opine that the Veteran was active and healthy and ran his business from 1975 until 2012. In November 2012, the Veteran was taken by life flight to the hospital and subsequently diagnosed with pulmonary arterial hypertension. April 2015 statements from the Veteran’s neighbor, his brother, his sister, his daughter, his son-in-law and his wife all described the Veteran’s physical decline and his current impairments. A February 2015 letter from Dr. D.O., the Veteran’s private primary care physician, states that pulmonary hypertension is a relatively rare disease, that it is typically secondary to lung disease, that it weakens the right side of the heart and that it eventually leads to heart failure and death. The physician states that the Veteran believes that his pulmonary hypertension is due to herbicide exposure during service. However, the physician does not relate the Veteran’s pulmonary arterial hypertension to exposure to herbicide agents and does not otherwise provide an etiology opinion. A June 2015 note from Dr. K.O., a VA physician, stated that pulmonary hypertension was not thought to be attributable to Agent Orange exposure. She further opined that it seems apparent from the Veteran’s history that he had long-standing hypertension along with long-standing untreated sleep apnea due to his compliance issues, which resulted in significant pulmonary hypertension. However, this physician did not give a rationale for her opinion. Therefore, it is afforded little, if any, probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The November 2017 VA examiner opined that the Veteran’s pulmonary arterial hypertension was less likely than not related to an in-service injury, event, or disease, including developing pulmonary arterial hypertension due to exposure to herbicide agents. The examiner noted that he had reviewed the Institute of Medicine and Agent Orange updates from both 2010 and 2014, that there was limited evidence to link hypertension to agent orange exposure and that the Veteran’s condition of pulmonary arterial hypertension can only be linked to hypertension if this were to have caused left heart failure. The examiner further reasoned that there was no evidence from a review of the Veteran’s record of left heart failure, that a review of the literature regarding the causes of pulmonary hypertension had failed to reveal any evidence of chemical exposure as a cause for this condition and the records do not indicate that there is anything from his time in service that may have caused his pulmonary arterial hypertension. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Id. This opinion is therefore afforded great probative weight. The final question for the Board is whether the Veteran’s arterial hypertension is proximately due to, the result of, or is aggravated beyond its natural progress by his service-connected diabetes mellitus. The Board concludes that the preponderance of the evidence is against finding that the Veteran’s pulmonary arterial hypertension is secondary to service connected diabetes mellitus. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The November 2017 VA examiner opined that the Veteran’s pulmonary arterial hypertension is less likely than proximately due to or the result of his service connected condition as there was no known link between diabetes and pulmonary arterial hypertension. The examiner further opined that it was not at least as likely as not that the Veteran’s pulmonary arterial hypertension was aggravated beyond its natural progression by his service diabetes mellitus as there is no known link between diabetes mellitus and pulmonary arterial hypertension and that the disorder had a naturally progressive course. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, supra. This opinion is therefore afforded great probative weight. There is no contrary opinion of record as to secondary service connection. The Board acknowledges the Veteran’s assertions and sincere belief that he has a diagnosis of pulmonary arterial hypertension that is related to his in-service exposure to herbicide agents or secondary to his service-connected diabetes mellitus. In this regard, the Veteran is competent to report the type of pulmonary symptoms he experienced in and after service, as this is observable through the five senses. See Layno v. Brown, 6 Vet. App. 465 (1994). However, a determination as to the appropriate diagnosis of the lung symptoms, and the etiology thereof, is a complex medical determination which goes beyond lay observation of symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet, App. 134, 137 (1994). In this regard, the question of causation involves a medical subject concerning an internal process extending beyond an immediately observable cause-and-effect relationship, and requires the administration and interpretation of diagnostic testing such as chest x-rays and a pulmonary function test. In the instant case, there is no suggestion that the Veteran has had any medical training. As such, the question of etiology in this case may not be competently addressed by lay evidence and the opinions of the Veteran are nonprobative evidence. As such, the question of etiology in this case may not be competently addressed by lay evidence and the opinions of the Veteran are nonprobative evidence. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. The preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for pulmonary arterial hypertension. As such, that doctrine is not applicable in the instant appeal and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Pierce, Associate Counsel