Citation Nr: 18145676 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 10-25 091 DATE: October 29, 2018 ORDER 1. Entitlement to service connection for hypertension, to include as being due to exposure to Agent Orange/herbicides during service and/or as secondary to type II diabetes mellitus and/or posttraumatic stress disorder (PTSD), is denied. 2. Entitlement to an initial disability rating in excess of 10 percent for small hiatal hernia, distal grade I reflux esophagitis, erosive gastritis, is denied. FINDINGS OF FACT 1. Military personnel records support that the Veteran served in the Republic of Vietnam, therefore, exposure to herbicides is presumed. 2. Hypertension did not have its onset in service, was not manifested within one year following service discharge, is not the result of Agent Orange/herbicide exposure, and is not proximately due to or aggravated by type II diabetes mellitus and/or PTSD. 3. Small hiatal hernia, distal grade I reflux esophagitis, erosive gastritis, has not been manifested by persistently recurrent epigastric stress with dysphagia, pyrosis, and regurgitation accompanied by substernal or arm or shoulder pain productive of considerable impairment of health. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension, to include as being due to exposure to Agent Orange/herbicides during service and/or as secondary to type II diabetes mellitus and/or PTSD have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309(e), 3.310. 2. The criteria for an initial disability rating in excess of 10 percent for small hiatal hernia, distal grade I reflux esophagitis, erosive gastritis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1968 to October 1970, including service in the Republic of Vietnam. The Veteran had subsequent military reserve service ending in March 1991. In March 2016, the issues of entitlement to service connection for hypertension and an initial evaluation in excess of 10 percent for small hiatal hernia, distal grade I reflux esophagitis, erosive gastritis, were remanded by the Board for further development. Regarding the claim for service connection for hypertension, in the March 2016 remand, the Board found that the April 2009 and September 2013 VA examinations did not contain supportive rationales and did not address the Veteran’s claimed relationship between hypertension and PTSD. As the Veteran was afforded another VA examination in April 2018 for hypertension, which has medical opinions with supportive rationales and address the secondary service connection theories of entitlement, the Board will not rely on the April 2009 and September 2013 VA examiners findings and opinions in the decision below for the Veteran’s claim for service connection for hypertension. The issues have been fully developed and the Board has set forth below a decision in the claim. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). If a veteran was exposed to an "herbicide agent," such as Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam from January 9, 1962, to May 7, 1975, then, absent affirmative evidence to the contrary, certain diseases will be service connected even if there is no in-service record of the disease in service. 38 C.F.R. §§ 3.307(a)(6), (d), 3.309(e). Notwithstanding the foregoing presumptions, a veteran is not precluded from establishing service connection due to exposure to herbicides with proof of direct causation. Combee v. Brown, 38 F.3d 1039, 1042 (Fed. Cir. 1994). Hypertension is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and the chronic disease becomes manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service connection is also warranted for a disability, which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). Entitlement to service connection for hypertension. The Veteran asserts that he is entitled to service connection for hypertension due to his exposure to Agent Orange/herbicides and/or as secondary to type II diabetes mellitus and/or PTSD. After a careful review of the evidence of record, the Board finds that, while the Veteran has a diagnosis of hypertension, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for hypertension, under any theory of entitlement. As noted above, hypertension is a chronic disease. The Veteran was discharged from service in 1970 and was not diagnosed with hypertension until 2007, approximately 37 years after discharge from service. As the Veteran was not diagnosed with hypertension in service or within the presumptive period, and continuity of symptomatology is not established, service connection on a presumptive basis must be denied. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Diseases listed in 38 C.F.R. § 3.309(e) are presumed to have been incurred as a result of herbicide exposure. The Secretary of Veterans Affairs has determined there is no presumptive positive association between exposure to herbicides and any other disorder for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 64 Fed. Reg. 59, 232-243 (Nov. 2, 1999). Hypertension is not listed as a disease associated with herbicide exposure under 38 C.F.R. § 3.309(e). Therefore, the Veteran cannot prevail under a claim for presumptive service connection in this matter under 38 C.F.R. § 3.309(e). To the extent the Veteran contends that his hypertension is due to herbicide exposure, the Board notes that while veterans are competent to opine as to some medical matters, the Veteran’s contention is a matter beyond lay observation and would require an opinion from a medical professional. The Veteran also asserted that his hypertension is secondary to diabetes mellitus and/or PTSD. In April 2018, a VA examiner opined that the Veteran’s hypertension was less likely than not proximately due to or the result of diabetes mellitus. The April 2018 examiner’s rationale was that the evidence of record is negative for microalbuminuria to establish that the Veteran’s hypertension is secondary to diabetes mellitus. The April 2018 VA examiner also opined that hypertension was less likely than not proximately due to or the result of PTSD. The examiner’s rationale was that although mental disease and stress can temporarily elevate any condition, the examiner was not aware of any medical literature that substantiated a claim that PTSD permanently causes or worsens hypertension. Accordingly, the Board finds the April 2018 VA examiner’s opinions and rationales are probative and persuasive evidence that the Veteran’s hypertension is not secondary to diabetes mellitus and/or PTSD. While the Veteran as a layperson is competent to report on matters observed or within his personal knowledge, the Board finds that establishing whether there is a medical relationship between hypertension and diabetes mellitus and PTSD requires medical expertise. As stated above, the Board finds probative and persuasive the April 2018 VA examiner’s opinions and rationales. Accordingly, the claim for service connection on a secondary basis is denied. Service connection for hypertension may still be granted on a direct basis; however, the preponderance of the evidence is against a finding that the Veteran’s hypertension began during active service, or is otherwise related to service. The Veteran meets the first required element for a direct service connection claim, as the evidence shows that the Veteran was diagnosed with hypertension in 2007. However, the preponderance of the evidence is against an in-service disease or injury pertaining to hypertension. For example, service treatment records (STRs) are negative for hypertension or even pre-hypertensive blood pressure readings. In a September 1970 Report of Medical History, completed by the Veteran, he specifically denied a history of high or low blood pressure. In a corresponding Report of Medical Examination completed by a medical professional, the Veteran’s blood pressure reading was 108/76 and shows a normal clinical evaluation for the Veteran’s heart and vascular systems. Further, in subsequent Reports of Medical Examination related to military reserve service in January 1980 and July 1987, the Veteran’s respective blood pressure readings were 120/86 and 122/84. In a July 1987 Report of Medical History completed by the Veteran, he wrote, “I am taking no medication. I’m in good health,” and he specifically denied a history of high or low blood pressure. As such, the preponderance of the evidence weighs against a finding that hypertension had its onset in service. Moreover, the Board finds that the passage of many years between service discharge and medical documentation of a claimed disability is a factor, which tends to weigh against a finding that the disability is related to service. The evidence shows that the Veteran was first diagnosed in 2007, which is 37 years after separation from active service and further supports the finding that Veteran’s hypertension did not have its onset in service or is otherwise related to service. There is no competent evidence that hypertension is related to service. The Veteran is not competent to provide such a nexus, as it is a complex disease process that must be provided by a medical professional. In conclusion, the Board finds that the preponderance of the evidence is against the claim for service connection for hypertension on a presumptive, direct, or secondary basis. 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 claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to an initial disability rating in excess of 10 percent for small hiatal hernia, distal grade I reflux esophagitis, erosive gastritis. In a February 2012 rating decision, service connection for small hiatal hernia, distal grade I reflux esophagitis, erosive gastritis, was granted and assigned an initial disability rating of 10 percent under Diagnostic Code 7346, effective August 6, 2010. The Veteran asserts he warrants a higher rating. Under Diagnostic Code 7346, a rating of 60 percent is warranted with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. A rating of 30 percent is warranted with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A rating of 10 percent is warranted with two or more of the symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114, Diagnostic Code 7346. The Veteran was afforded a VA examination in February 2011 and the examiner found that the Veteran had pyrosis and nausea and vomiting less than on a weekly basis. The February 2011 examiner also reported that the Veteran was negative for dysphagia, esophageal distress, regurgitation, hematemesis or melena or esophageal dilation. In April 2018, a VA examiner reported that the Veteran has infrequent episodes of epigastric distress, pyrosis, reflux nausea, and four or more episodes of nausea per year lasting less than one day. The April 2018 examiner also denied that the Veteran had any other pertinent physical findings, complications, conditions, signs or symptoms related to the small hiatal hernia, distal grade I reflux esophagitis, erosive gastritis. The Board finds that the February 2011 and April 2018 VA examiners’s findings are probative and persuasive as to whether a disability rating in excess of 10 percent is warranted for small hiatal hernia, distal grade I reflux esophagitis, erosive gastritis. The Board finds that an increase in the Veteran’s disability rating is not warranted. Specifically, the Veteran’s small hiatal hernia has not been manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health warranting an increase in his initial disability rating. Further, the Board finds that for any period on appeal, the probative evidence of record is negative evidence of dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health or pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Accordingly, the claim for an initial evaluation in excess of 10 percent is denied. For the reasons stated above, the Board finds that the preponderance of the evidence is against an increase in excess of 10 percent for an initial disability rating for small hiatal hernia, distal grade I reflux esophagitis, erosive gastritis. See 38 C.F.R. § 4114, Diagnostic Code 7346. 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 claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Morgan, Associate Counsel