Citation Nr: 18152535 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 12-27 288A DATE: November 23, 2018 ORDER Entitlement to service connection for hypertension, to include a secondary to herbicide agent exposure, is denied. FINDING OF FACT The Veteran’s hypertension was not incurred in service or within one year of separation from service, and is not related to his service, to include exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for hypertension have not all been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 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 from January 1969 to November 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in September 2016. The Board remanded this claim to obtain all relevant VA treatment records and to obtain a new VA examiner opinion regarding service connection for hypertension. The Board finds that all medical records have been associated with the claims file and a new VA examination was obtained in May 2017, in addition to a medical expert opinion in August 2018. Accordingly, the Board finds that the remand directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 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”- the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including hypertension, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112, 38 C.F.R. §§ 3.307, 3.309(a). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disability. See 38 C.F.R. § 3.310(a). Service connection will also be granted on a secondary basis for an additional disability that results from aggravation of a non-service connected disability by a service connected disability. Entitlement to service connection for hypertension The Veteran contends that his hypertension is related to his active duty service and his exposure to Agent Orange (herbicide agents) while in service. Service connection for certain disabilities is presumed for veterans who were exposed to herbicide agents while in service if this disability manifests to a compensable degree at any time after service. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). A veteran, who during active service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Veteran served in the Republic of Vietnam from July 1969 through July 1970. As such, the Veteran is presumed to have exposure to herbicide agents. However, hypertension is not subject to presumptive service connection based on exposure to herbicide agents. 38 C.F.R. § 3.309(e). Therefore, service connection cannot be granted on a presumptive basis secondary to herbicide agent exposure. Although the Veteran is not entitled to presumptive service connection based on herbicide agent exposure, the Board has also considered the claim on direct and presumptive chronic disease bases. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The preponderance of the evidence is against the grant of service connection for hypertension on a direct and presumptive chronic basis. A December 2010 VA examiner found the Veteran had a diagnosis of hypertension. As such, the first element of service connection has been met. The Veteran’s service treatment records (STRs) show that his blood pressure was recorded as 130/74 on his June 1968 entrance examination. His November 1971 separation examination indicates a blood pressure reading of 128/88. Post-service VA treatment records indicate that in 1998 the Veteran was diagnosed with hypertension and prescribed beta blockers for treatment. In October 2009, the Veteran submitted a statement indicating that he had been going to VA medical centers of treatment of high blood pressure for about 20 or more years. On the October 2012 Form 9, the Veteran stated has been under treatment for hypertension for 30 years at a VA medical center, and he believes that his hypertension is Agent Orange related. The Veteran was afforded a VA examination for hypertension in December 2010. Blood pressure readings at that time confirmed a diagnosis of hypertension. However, the examiner did not offer an opinion as to whether the Veteran’s hypertension was related to his active duty service. A VA examiner reviewed the Veteran’s file in May 2017. The examiner did not provide adequate responses for the questions presented. The examiner did not provide responsive answers to the questions regarding whether it was at least as likely as not that the Veteran’s hypertension occurred during or within one year of separation from service, or whether hypertension was caused by the Veteran’s active service. Accordingly, the Board referred the claim for a medical expert opinion in July 2018. In August 2018, the medical expert opined that it is less likely than not that the Veteran’s hypertension occurred within one year of separation from service. The expert stated that the isolated readings addressed above do not support a diagnosis of hypertension, and a review of the STRs show no other readings during service. The expert further noted that in 1984 the Veteran was treated for testicular cancer, and available blood pressure readings at that time were normal. The expert was also of the opinion that it was less likely than not that the Veteran’s hypertension was caused by herbicide agent exposure in Vietnam. The expert stated that based on a cited report, the Committee to Review the Health Effects in Vietnam Veterans of Exposure to Herbicides, categorized hypertension as having limited or suggestive evidence of association with herbicide exposure. However, the expert stated that his negative opinion was not based on a statistical analysis, but rather based on the relevant information of record. The expert stated that hypertension is most commonly found in patients with a history of hypertension, obesity, sedentary lifestyle, African American race, excessive alcohol consumption, diabetes, and personal traits, as well as reduced nephron number. The expert also stated it was less likely than not that the Veteran’s hypertension was caused by his miliary service. The expert noted that the STRs show no illness, injuries, or other significant events during his time in service. The Board finds the medical expert opinion the most probative evidence of record. The examiner’s rationale is logical, and he took into consideration the entire record, including the Veteran’s service and post-service treatment records, the prior VA examinations, and the Veteran’s lay statements. The Board has considered the Veteran’s objection to the medical expert opinion. The Veteran stated that the expert did not mention his prostate cancer or his blood pressure after his prostate cancer. However, the issue of prostate cancer is not currently before the Board. Additionally, there is no probative evidence of record indicating that the Veteran’s hypertension is related to his prostate cancer. The Board has also considered the Veteran’s statements that his hypertension was caused by his exposure to herbicide agents while in service. However, whether the Veteran’s hypertension is related to herbicide agent exposure is a complex medical question, and is not within the knowledge of a lay person or determinable by observation with one’s senses. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Therefore, the Veteran’s statement is not competent evidence and not probative. The claims file does not contain any competent evidence relating the Veteran’s hypertension to his service, to include herbicide agent exposure. As such, the preponderance of the evidence is against the grant of service connection on a direct basis. The Board also acknowledges the Veteran’s contention that his hypertension is secondary to diabetes mellitus. However, service connection has not been established for diabetes mellitus. As such, the Board cannot grant service connection for hypertension secondary to diabetes. See 38 C.F.R. § 3.310(a). Therefore, the Board finds that the weight of the evidence is against manifestation of hypertension in service, within the one-year presumptive period, and is against a relationship between hypertension and service. Accordingly, the preponderance of the evidence is against the claim of entitlement to service connection for hypertension. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Norah Patrick, Associate Counsel