Citation Nr: 18155508 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 13-04 818 DATE: December 4, 2018 ORDER Entitlement to service connection for hypertension, to include as secondary to Agent Orange exposure, is denied Entitlement to service connection for chronic renal failure, to include as secondary to hypertension, and as secondary to Agent Orange exposure, is denied. FINDINGS OF FACT 1. Hypertension was not shown during active duty service or for many years thereafter, and is not related to service. 2. The weight of the most competent and probative evidence is against a finding that the Veteran’s kidney disability had its onset during military service or is otherwise related to such service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension, to include as secondary to Agent Orange exposure, have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for entitlement to service connection for chronic renal failure, to include as secondary to hypertension, and as secondary to Agent Orange exposure, have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1968 to July 1971. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran testified before the undersigned at a July 2014 Travel Board hearing. The hearing transcript is of record. This claim was previously before the Board in September 2017, at which time it was remanded for additional development. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen’s disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term “chronic disease” refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a chronic disease under 3.309(a) is “shown as such in service” (“meaning clearly diagnosed beyond legitimate question,” Walker, 708 F.3d at 1339) or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is “shown as such in service,” the Veteran is “relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought.” Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, “there is no ‘nexus’ requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease.” Id. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and service, and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed.” Walker, 703 F.3d at 1336; 38 C.F.R. § 3.303(b). Additionally, a veteran who, during active military, naval, or air 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 such veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iii) (2017). A veteran is presumed exposed to Agent Orange if he or she had active military, naval, or air service, in the Republic of Vietnam from January 9, 1962 through May 7, 1975, “unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.” 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Such service must be either “foot-on-ground” service or service on the inland waterways in the interior of the Republic of Vietnam (“brown water service” versus “blue water service”). See 38 C.F.R. § 3.307(a)(6)(iii) (2017); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008; 66 Fed. Reg. 23,166 (May 8, 2001); VAOPGCPREC 27-97. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 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 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2017). The enumerated diseases acute and subacute peripheral neuropathy. 38 C.F.R. § 3.309(e). VA 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). Despite the presumptive regulations, a claimant may establish service connection based on exposure to Agent Orange with proof of actual direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Hypertension The Veteran seeks entitlement to service connection for hypertension, which is defined as high arterial blood pressure. Dorland’s Illustrated Medical Dictionary 801 (28th ed. 1994). Various criteria for its threshold have been suggested, ranging from 140 systolic and 90 diastolic to as high as 200 systolic and 110 diastolic. Id. For purposes of rating the disease, VA defines the term as meaning “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.” See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). It must be confirmed by readings taken two or more times on at least three different days. Id. At the Veteran’s May 1968 entrance examination, his blood pressure was 136/74. The Veteran’s separation examination from March 1971 noted a blood pressure reading of 132/84. On his report of medical history, the Veteran indicated “I am in good health.” The Veteran testified at his September 2014 Board hearing that he did not have any blood pressure problems prior to service, nor did he have hypertension documented on his entrance examination. He was stationed in Vietnam from December 1968 through December 1969, and did not have any high blood pressure problems during service. The Veteran estimated that he was diagnosed with hypertension in the late 1980s by a private physician, but the physician did not link the condition with exposure to Agent Orange. Pursuant to the September 2017 Board remand, the Veteran received a VA examination in October 2017 and the examiner noted a current diagnosis of hypertension. He stated that he went to a VA hospital in 1971 and was told that his blood pressure was high and to keep an eye on it. Based on the results of the examination, the examiner opined that the hypertension was less likely than not caused by service. The examiner noted that the only two blood pressure readings from service came during the entrance and separation examinations, and those readings were within normal limits. Therefore, there was no hypertension in service. The examiner also noted that there was no evidence of a diagnosis of hypertension in the year following separation from service. The examiner also considered the National Academy of Sciences Institute of Medicine’s (NAS) conclusion that there is “limited or suggestive evidence of an association” between herbicide exposure and hypertension. See 77 Fed. Reg. 47924, 47926-927 (Aug. 10, 2012). She found that the body of the literature revealed problems with reviewing studies due to the inability to account for and control the multiple risk factors for hypertension, including age, race, body mass index, and diabetes. She then indicated that there were clear, well-defined studies that noted multiple risk factors for hypertension, and they did not include Agent Orange or other herbicides. However, the Veteran’s age and dyslipidemia were well-defined and well-documented risk factors for the condition. The Board finds the October 2017 VA examination highly probative evidence against the Veteran’s claim. The examiner’s findings are credible and competent, as they were provided with thorough rationales with regards to the Veteran’s hypertension disability and its lack of connection to service. Furthermore, the examiner considered the Veteran’s lay statements, and the NAS’s study regarding evidence of an association between herbicide exposure and hypertension. In light of the most competent medical evidence indicating that the Veteran’s hypertension disability is not related to service, the Board finds that service connection is not warranted. The Board also notes that hypertension is a chronic disease subject to presumptive service connection under 38 C.F.R. § 3.309(a). However, the most probative evidence indicates that the Veteran was not symptomatic at the time of discharge. The evidence of record indicates that the Veteran received a general VA examination in September 1971, and his blood pressure readings were within normal limits. He was first diagnosed with hypertension in October 2004, nearly 30 years after separation. Furthermore, the Veteran did not have any symptoms attributable to hypertension until long after separation. As the disability did not manifest to a compensable degree within one year from the date of separation, the Board finds that presumptive service connection is also not warranted. 2. Chronic Renal Failure At the September 2014 Board hearing, the Veteran indicated that his nephrologist at West Virginia University focused on the “hypertension element that’s probably the cause of the renal failure.” Prior to service and during service, the Veteran did not have any renal failure problems. He stated that it was not until almost 30 years after discharge that he started receiving treatment for the condition. The Veteran indicated that his doctors believe that the condition is related to the hypertension and not directly related to service The Veteran received a VA examination in October 2017 and the examiner noted a diagnosis of chronic kidney disease from April 2005. The Veteran reported that he was told by the nephrology department at West Virginia University that his kidney problem was due to high blood pressure. He was advised that it was nothing to worry about, but that he had to keep his blood pressure controlled and keep an eye on it. Based on the results of the examination, the examiner concluded that it was less likely than not that the Veteran’s renal failure was due to service or herbicide exposure. However, she concluded that it was as least as likely as not that the Veteran’s chronic kidney disease was proximately due to or the result of the Veteran’s hypertension. At the outset, there is no evidence of record, lay or medical, suggesting that the Veteran’s chronic renal failure is related to service on a basis other than as secondary to his hypertension. Accordingly, a preponderance of the evidence is against the claim for service connection for chronic renal failure on a direct basis and as secondary to herbicide exposure. The competent medical evidence linked the Veteran’s disability to his hypertension. However, as the Board has denied the Veteran’s claim for entitlement to service connection for hypertension, it must also deny his claim for entitlement to service connection for chronic renal failure as secondary to hypertension. 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 Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (West 2014); Ortiz v. Princippi, 274 F. 3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel