Citation Nr: 18153720 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-37 352 DATE: November 29, 2018 ORDER Entitlement to service connection for hypertension, to include as a result of exposure to herbicides, is denied. FINDING OF FACT The Veteran’s current hypertension is not the result of in-service exposure to herbicides, did not begin during service, and is not related to service in any other way. CONCLUSION OF LAW Entitlement to service connection for hypertension, to include as a result of exposure to herbicides, have not been met. 38 U.S.C. §§ 1101, 1110, 1116, 5107 (2017); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a veteran (the Veteran) who had active duty service from August 1966 to April 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a July 2017 videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. Entitlement to service connection for hypertension, to include as a result of exposure to herbicides 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 requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, for certain chronic diseases, including hypertension, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). When a chronic disease is not shown within one year after service, under 38 C.F.R. § 3.303(b) 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. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in the Republic of Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C. § 1116 (f) and 38 C.F.R. § 3.307 (a)(6)(iii). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type II diabetes, Hodgkin’s disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), all chronic B-cell leukemias, multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). The term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309 (e). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113 (b) and 1116 and 38 C.F.R. § 3.303. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Board notes that in this case, the Veteran served in Vietnam and was thus presumptively exposed to herbicide agents. The Veteran seeks service connection for hypertension, claiming it was caused by his exposure to Agent Orange in Vietnam. Hypertension is not a presumptive disability based on herbicide exposure so this claim could only be granted through direct service connection. 38 U.S.C. § 1116 VA regulations require that hypertension or isolated systolic hypertension be confirmed by readings taken two or more times on at least three different days. For compensation purposes, hypertension means that the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101. Service treatment records do not reflect any symptoms, diagnosis, or treatment for hypertension. The Veteran’s April 1969 separation examination revealed no defects or diagnoses of any kind. Blood pressure measured at the time of separation indicates systolic of 132; diastolic illegible. There was only one blood pressure reading noted on the separation exam. The Veteran was not diagnosed with hypertension until 2007, approximately 38 years later so the evidence does not show the Veteran’s diagnosis developed while he was in service or to a compensable degree within a year of discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). VA treatment records beginning in 2004, show various blood pressure readings of 130/76 (June 2004), 154/85 (July 2004), 144/76 (August 2004), and 137/84 (October 2004) among others. In July 2004 a VA doctor provided an assessment indicating the Veteran had mild elevated blood pressure. In October 2004, a VA Licensed Practical Nurse (LPN) indicated the average of the Veteran’s last 3 blood pressure readings were 140/90. Despite those readings, a diagnosis of hypertension did not follow until 2007. In January 2014, the Veteran was afforded a VA examination. The examiner opined the Veteran’s hypertension is less likely than not incurred in or caused by the elevated blood pressure reading shown upon his military separation examination dated April 4, 1969. The examiner’s rationale for this opinion is based on a review of the service treatment records revealing no diagnosis of hypertension during service. Additionally, the Veteran’s separation exam showed a blood pressure reading of 132/80, which did not indicate an elevated blood pressure reading according to the hypertensions guidelines (140/90). At any rate, it takes more than one blood pressure reading to diagnose hypertension. An April 2018 private medical record states that the Veteran “. . . has been seen and treated in our office with diagnosis of Hypertension since September 2017 and at least as likely as not to be service related.” The Board acknowledges the Veteran’s allegations that the separation examination report actually recorded a blood pressure of 137/90; and that the military had duty to take additional blood pressure readings at that time. Assuming for the sake of argument that Veteran’s blood pressure may have been 137/90 at separation (rather than the 132/80 postulated by the VA examiner), and that such reading may reflect elevated blood pressure, the fact of the matter remains that there was no diagnosis of hypertension made at that time. VA is bound by service department records. The argument that the military had duty to take additional blood pressure readings at that time is misplaced under VA law. Indeed, VA law and regulations do not place a duty on the military to provide additional blood pressure readings. In any case, a diagnosis of hypertension requires the readings on at least three different days. See 38 C.F.R. § 4.104. The separation exam was completed on the day before the Veterans last day of service, which means it was not plausible to complete the blood pressure exams for three days. The Board has considered the private April 2018 medical record noting that the Veteran’s hypertension is at least as likely as not to be service related. However, the Board finds that this opinion lacks probative value because it contains no rationale or explanation whatsoever. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Rather, the Board finds the January 2014 VA examination to be the most probative because it addresses all the relevant evidence and arguments the and provides complete rationale for the opinion. The Board finds that the evidence weighs against a finding that the Veteran’s hypertension is related to service or manifested within one year of separation from service. Service treatment records do not reflect any hypertension treatment or diagnosis, and the Veteran has not identified any in-service event, injury, or disease related to his current hypertension. The Veteran was diagnosed with hypertension in 2007 and the VA examiner of record, who reviewed the medical and service personnel records, opined the current diagnosis is less likely than not incurred in or caused by the elevated blood pressure reading shown upon his military separation examination dated April 1969. Therefore, a preponderance of the evidence is against a finding that hypertension is the result of in-service exposure to herbicides, began during service, or is related to service in any other way. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.§5107(b); 38 C.F.R.§ 3.102; see also Gilbert, 1 Vet. App.at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Jackman, Associate Counsel