Citation Nr: 18145189 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 09-41 178 DATE: October 26, 2018 ORDER Entitlement to service connection for essential hypertension, to include as secondary to service-connected diabetes mellitus type II, and exposure to herbicides, is denied. FINDING OF FACT Hypertension was not present during the Veteran’s service or manifest to a compensable degree within one year of service separation, and the record contains no indication that the Veteran’s post-service hypertension is causally related to his active service or any incident therein, or causally related to or aggravated by his service-connected diabetes mellitus type II. CONCLUSION OF LAW The criteria for an award of service connection for hypertension have not been met. 38 U.S.C. §§1110, 5107 (2012); 38 C.F.R. §§3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1968 to June 1970. The Veteran served in combat in the Republic of Vietnam and is presumed to have been exposed to herbicide agents. The Veteran was a recipient of Combat Infantryman’s Badge, Army Commendation Medal, Air Medal, Vietnam-Service Medal, Vietnam Campaign Medal, Bronze Star Medal, and National Defense Service Medal. The Veteran passed away on January 28, 2016. The Veteran’s widow is the appellant in this matter. The request for substitution was granted in August 2018. This case comes before the Board of Veterans’ Appeals (the Board) on appeal from an April 2009 rating decision issued by the Department of Veterans’ Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In pertinent part, the April 2009 rating decision denied service connection for hypertension, radiculopathy of the bilateral lower extremities, and radiculopathy of the bilateral upper extremities. A timely appeal was filed. In a January 2016 rating decision, issued prior to the Veteran’s January 2016 death, the RO granted service connection for radiculopathy of the bilateral upper and lower extremities. The RO subsequently issued a supplemental statement of the case addressing the remaining issue of service connection for hypertension. Following the Veteran’s death, the RO granted the appellant’s timely request for substitution to complete the appeal with regard to the claim of service connection for hypertension. As service connection for radiculopathy of the bilateral lower and upper extremities was granted prior to the Veteran’s death, the appellant’s representative’s inclusion of these claims in the September 2018 Written Brief Presentation is harmless error. Veterans Claims Assistance Act of 2000 (VCAA) The appellant has not raised any issues with duty to notify or 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). The Board notes on August 30, 2018 the Board erroneously uploaded a notification letter addressed to a different Veteran unto the appellant’s electronic file. That letter was not mailed to the appellant and did not cause any prejudice as the appellant has already been notified that the claim was certified to the Board. Applicable Law Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §1110. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In general, to establish direct service connection, a Veteran must show: (1) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. §3.310(a). Establishing a 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) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. §3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995)(en banc). Additionally, service connection is presumed for certain diseases if a veteran was exposed to an herbicide agent, such as Agent Orange, during active service if the requirements of 38 U.S.C. §1116; 38 C.F.R. §3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 U.S.C. §1113; 38 C.F.R. §3.307(d) are also satisfied. 38 C.F.R. §3.309(e)(2017). Exposure to Agent Orange is presumed for veterans who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975. 38 C.F.R. §3.307(a)(iii). VA’s Secretary has determined that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined a presumption of service connection is warranted. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 81, 332 (Dec. 27, 2010); see also Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange, 77 Fed. Reg. 47, 924 (Aug. 10, 2012). Hypertension is not deemed to be associated with herbicide exposure. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. §3.307(a)(6)(ii). Service Connection 1. Entitlement to service connection for essential hypertension, to include as secondary to diabetes mellitus type II, and exposure to Agent Orange. The Veteran contended that his hypertension is secondary to his service-connected diabetes mellitus type II and presumptive exposure to Agent Orange. The record establishes the presence of a disability. The Veteran was first diagnosed with hypertension in 1996. Therefore, the first element of service connection is established for this claim. The next inquiry is whether the record establishes a causal relationship between the Veteran’s hypertension and his active service or his service-connected diabetes mellitus type II or exposure to Agent Orange. In that regard, the Board has obtained private treatment records and results of VA examinations. The Veteran’s August 1996 private treatment summary written by his longtime treating endocrinologist, Dr. S.A., notes final diagnosis as (1) newly diagnosed diabetes mellitus and (2) hypertension. An October 2000 letter written by Dr. S.A. noted that the Veteran was “already hypertensive when he was referred to me by [Dr. N] with newly diagnosed Diabetes in 1996.” Dr. S.A. noted that the Veteran had a family history of hypertension and that he was tested for renal and secondary causes of hypertension with the tests results coming up as negative. In September 2008, Dr. S.A., who continued treating the Veteran wrote a note to the VA listing the Veteran’s diagnoses. The diagnoses included: (1) Uncontrolled Diabetes Type 2 Mellitus (2) Diabetes Complications has Nephropathy/Proteinuria (3) Hypertension (4) Hyperlipidemia (5) Has developed symptomatic Diabetic Neuropathy (6) Has required Insulin for worsening diabetes. Hypertension was not listed as one of the complications for diabetes. This time Dr. S.A, noted that the Veteran was diagnosed with diabetes in 1996 when he was also found to have hypertension. In October 2008, the Veteran underwent a VA examination which confirmed the diagnosis of essential hypertension. The Veteran’s service treatment and independent treatment records were reviewed. The examination concluded that essential hypertension was not a complication of diabetes mellitus type II because they were diagnosed around the same time in 1996 and because the Veteran continued to have normal renal functions. In a June 2009 letter, Dr. S.A. listed neuropathy, nephropathy, hypertension, and hyperlipidemia as complications to the Veteran’s diabetes. In January 2016, the VA provided an additional medical opinion with respect to the above-mentioned conflicting evidence. After review of the Veteran’s records, the examiner confirmed the essential hypertension diagnosis. The examiner likewise confirmed that the Veteran’s essential hypertension is not a complication of his diabetes mellites type II. The examiner noted that essential hypertension, by definition, does not have an identifiable root cause. It tends to be familial in nature and its prevalence increases with age. In determining the probative value of this evidence, the Board must consider certain factors. In Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008), the U.S. Court of Appeals for Veterans Claims (Court) held that the rules on expert witness testimony delineated in the Federal Rules of Evidence provide “important, guiding factors to be used by the Board in evaluating the probative value of medical opinion evidence.” Nieves-Rodriguez, 22 Vet. App. at 302. The first factor to be considered in determining the probative value of a medical opinion is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Nieves-Rodriguez, 22 Vet. App. at 303-04. The second factor involves consideration of whether the medical expert provided a fully articulated opinion. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of a medical opinion involves a consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). (“[A] medical opinion…must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). After a review of the evidence, the Board finds that the preponderance of the evidence is against the Veteran’s claim. With respect to Dr. S.A.’s June 2009 letter stating that hypertension is a complication of the Veteran’s diabetes mellitus type II, the Board cannot give that evidence weight. Dr. S.A. did not provide any medical reasoning or analysis as to how he reached this conclusion, especially in light of it being contradictory to his own October 2000 findings. In October 2000, Dr. S.A. noted that the Veteran was tested for, and was not found to have any secondary causes for his hypertension. He even noted that hypertension was potentially diagnosed prior to the diabetes mellitus type II. The Board gives weight to the VA medical opinion of record, concluding that the Veteran’s hypertension was less likely than not proximately due to or the result of the Veteran’s service connected disability. The medical opinion provided a rationale and an analysis. More importantly, the medical opinion noted that the Veteran’s hypertension was not caused or aggravated by his diabetes mellitus type II because his renal functions were found to be normal. The same reasoning was provided in October 2000 by Dr. S.A. The Board gives the January 2016 VA medical opinion of record probative weight because the examiner reviewed the Veteran’s service treatment records, private medical records, and based the conclusion on factual premises. Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim. The record shows that hypertension was not present in service, did not manifest to a compensable degree within one year of service separation, nor has it been shown to be causally related to or aggravated by his service-connected disability, to include diabetes mellitus type II, and exposure to Agent Orange. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Kseniya A. Kuksova, Associate Counsel