Citation Nr: 1806816 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 04-03 278A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for hypertension, to include as due to herbicide agent exposure and service connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Churchwell, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1967 to June 1970. Following his period of active service, he had service in the United States Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia which, in pertinent part, denied service connection for hypertension. In subsequent rating actions, the RO denied service connection for hypertension, to include as secondary to service-connected disabilities. The Veteran disagreed with the decision to deny service connection. See October 2003 notice of disagreement. Procedurally, in November 2006 and again in June 2009, the Board remanded this claim for further development. Then in March 2010, the Board denied the Veteran's claim of entitlement to service connection for hypertension, to include as secondary to service connected disabilities, such as diabetes mellitus, dermatitis and posttraumatic stress disorder (PTSD). The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) which issued a Joint Motion for Remand (JMR) in April 2011. In response to the Court's JMR, the Board remanded this claim in April 2012 for further development consistent with the JMR. The Board remanded the claim again in November 2015 and in April 2017 for additional development. It has now returned to the Board for further appellate adjudication. Also as an initial matter, the Board notes that in various statements, to include a letter received in December 2016, the Veteran requests entitlement to an earlier effective date for his heart disease based on a Nehmer review of his claim. Effective March 24, 2015, when a claimant submits a communication indicating a desire to apply for VA benefits, but the communication does not meet the standards of a complete claim for benefits, the communication will be considered a request for an application form for benefits under 38 C.F.R. §§ 3.150 , 3.155(a) (2017). When such a communication is received, VA shall notify the claimant and the claimant's representative of the information necessary to complete the application form or form prescribed by the Secretary. Id. In light of the foregoing, the Veteran's claim for an earlier effective date for his service-connected heart disease is referred to the Agency of Original Jurisdiction (AOJ) for any appropriate action. 38 C.F.R. § 19.9(b) (2017). [The Board notes parenthetically, however, that in the Veteran's statements requesting an earlier effective date, he appears to be arguing that the effective date should be 2002, the date of his original claim, and not 2010, when he filed another claim. A review of the record shows that the Veteran's award of service connection for coronary artery disease/ischemic heart disease is effective from September 5, 2002. See June 2005 rating decision (awarding service connection for heart disease).] FINDING OF FACT The Veteran's hypertension did not have its onset in service, is not related to service, including his claimed herbicide agent exposure, did not manifest to a compensable degree within one year of service separation and was not caused or aggravated by any service connected disability. CONCLUSION OF LAW The criteria for service connection for hypertension, to include as due to herbicide agent exposure and service connected disabilities are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.6, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). The duty to notify has been met. See October 2002 VCAA correspondence. In light of the foregoing, nothing more is required. VA also has a duty to assist a claimant in the development of a claim. That duty includes assisting the claimant in the procurement of service and other relevant records and providing an examination when necessary. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has associated the Veteran's service treatment records and VA treatment records with the claims file. The Veteran was also afforded adequate examinations. The examiners considered the relevant history, provided a detailed description of the condition, and provided an extensive analysis to support the conclusions reached. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). As there is no indication or allegation that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially 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). For certain chronic diseases (including hypertension), service connection may be established on a presumptive basis if they are manifested to a compensable degree in a specified period of time postservice (one year for hypertension). 38 U.S.C. §§ 1112, 1113 38 C.F.R. §§ 3.307, 3.309. Generally, to substantiate a claim of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). A disorder may also be service connected if the evidence of record shows that the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303 (b). A demonstration of continuity of symptomatology is an alternative method of demonstrating the second and/or third elements discussed above. See Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, or aggravated by a service-connected disease or injury. Establishing service connection on a secondary basis requires: (1) competent evidence (a medical diagnosis) of a current disability (for which secondary service connection is sought); (2) evidence of a service connected disability; and (3) competent evidence that the current disability was either (a) caused or (aggravated) by the service connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's DD 214 shows that he served in the Republic of Vietnam from May 1968 to May 1969. His service treatment records are silent for any complaints, findings, treatment or diagnoses related to high blood pressure or hypertension. At the time of the Veteran's June 1967 entrance examination, his blood pressure was noted to be 134/84. At his March 1970 separation examination, his blood pressure was found to be 136/86. Thereafter, a discharge physical from the Reserves in February 1979 showed his blood pressure was 140/88. In the reports of medical history associated with the March 1970 and February 1979 examinations, the Veteran indicated that he did not have nor had he ever had any heart trouble or high or low blood pressure. Postservice VA treatment records show that the Veteran's hypertension was diagnosed initially in 1996. Subsequent treatment records show that the Veteran has been followed for ongoing hypertension that is managed by prescription medications. Based on the foregoing, there is no evidence that the Veteran's current hypertension was manifested in service or to a compensable degree in the first year following his separation from active duty. Consequently, service connection for hypertension on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112 ), is not warranted. Notably, the Veteran has not alleged (nor has he submitted competent evidence to show) that he has suffered from high blood pressure or hypertension continuously since service. See 38 C.F.R. § 3.303 (b); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). Instead, the Veteran provides alternative theories of entitlement to the benefit sought. First, he claims his hypertension is causally related to his exposure to Agent Orange in service. The law provides that, if a veteran was exposed to an herbicide agent during service, certain listed diseases shall be service-connected 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 further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. The list of diseases afforded this presumptions was expanded by an August 2010 amendment to 38 C.F.R. § 3.309(e) to include chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease. Ischemic heart disease includes, but is 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." This amendment is applicable to claims received by VA on or after August 31, 2010, and to claims pending before VA on that date, as well as certain previously denied claims. See 75 Fed. Reg. 52,202 (Aug. 31, 2010). Although there is evidence that the Veteran served in Vietnam and thus is presumed to have been exposed to herbicide agents, hypertension is not listed among the diseases enumerated under 38 C.F.R. § 3.309(e); consequently, the herbicide presumptive provisions of 38 U.S.C. § 1116 do not apply as to that disability. See also 75 Fed. Reg. 52,202 (Aug. 31, 2010) (explaining that since the term, "ischemic heart disease," refers only to heart disease, it does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke). The United States Court of Appeals for the Federal Circuit has nevertheless determined that a claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on exposure to Agent Orange is not precluded from establishing service connection for such disability as due to Agent Orange exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). There is, however, no competent evidence in the record of a possible nexus between the Veteran's hypertension and Agent Orange exposure. In support of his claim, the Veteran submitted several articles from the Internet which he asserted established an association between his hypertension and Agent Orange. See March 2015 correspondence. The first article is a copy of the Federal Register notice issued by VA in April 2014, which explains that the National Academy of Science had placed hypertension in the "Limited or Suggestive Evidence of Association" category with respect to Agent Orange; therefore, the Secretary of VA had determined there was insufficient evidence to establish a new presumption of service connection in Veterans exposed to herbicide agents. The second article discusses a relationship between Agent Orange and autism, and is therefore not pertinent to the claim. The third article is a copy of an online forum discussion related to Agent Orange and its effects on ischemic heart disease. In the attached correspondence, the Veteran asserted that his hypertension was a form of coronary artery disease, and thus warranted service connection secondary to Agent Orange exposure. However, as explained in the above legal criteria, ischemic heart disease and coronary artery disease are specifically defined as being exclusive of hypertension. Therefore, the third article is also not pertinent to the Veteran's claim. [Notably, the Veteran is already service-connected for coronary artery disease/ischemic heart disease.] On May 2017, the Veteran was afforded a VA examination to determine the nature and etiology of his hypertension. The VA examiner opined that the Veteran's hypertension was less likely as not related to his service or herbicide agent exposure. In support of that opinion, the VA examiner highlighted the fact that the Veteran's hypertension was not diagnosed until 1996 by his primary care physician, many years following his service. Moreover, the examiner identified a number of risk factors which were strongly associated with the development of primary hypertension, and of which the Veteran exhibited 5 out of 7. The examiner was unable to comment on the remaining two risk factors for lack of information. However, the examiner found that these were the most likely etiologies of the Veteran's primary hypertension. Addressing the Veteran's contention of exposure to herbicide agents in service and his hypertension, the examiner stated that despite several studies having been done over the years to determine whether there was a link, as of the current date, hypertension had not been found to be linked to Agent Orange exposure. In support of that statement, the examiner cited to two previous studies having not shown a significant mortality risk due to hypertension for Vietnam Veterans as compared to non-Vietnam Veterans. Lastly, the examiner stressed that hypertension increases with age and is a part of the normal aging process. The examiner then concluded that based on current available medical literature, the Veteran's risk factors for primary hypertension, and the fact that he was diagnosed with hypertension 26 years after his military separation, supported a finding that his hypertension was less likely due to his service or herbicide agent exposure. The May 2017 VA medical opinion is the only adequate medical opinion in the record that addresses the question of whether the Veteran's hypertension is related to his herbicide agents exposure in service. Significantly, the May 2017 VA medical opinion was provided by a physician (who would be qualified to provide it); was based on a physical examination of the Veteran, a review of the claims file, and consideration of pertinent medical literature; and included a rationale for the opinion; therefore, it has substantial probative value. Furthermore, there is no competent evidence to the contrary; thus, the opinion is persuasive. The Veteran's own statements relating his hypertension to herbicide agents exposure in service are not competent evidence, as he is a layperson, and lacks the training to opine regarding medical causation in this matter; whether a disease/condition is related to Agent Orange exposure is a complex medical question, and is not capable of resolution by lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court). The Veteran's second alternative theory of entitlement is that his hypertension is due to his service-connected disabilities. The only medical opinion that addresses the question of secondary service connection is that of an April 2014 examiner who found no relationship between the Veteran's hypertension and his service-connected disabilities. In particular, the examiner found the fact that the Veteran's onset of hypertension was years to decades following his diagnosis of diabetes mellitus precluded diabetes mellitus as a service-connected disability causing his hypertension. The examiner explained that while medical literature has shown that persons with diabetes are at more risk for developing hypertension, there was no direct causative link. Additionally, the examiner indicated that there was no evidence of a clear pathophysiologic causative relationship between hypertension and PTSD. The only studies available provided speculative relationships without definitive science explaining the presumed association. The examiner also found there was no medical evidence that the short-term use of corticosteroids caused hypertension. The examiner explained that corticosteroids could increase blood pressure during administration; however, the effect had been shown to resolve with discontinuation of the medication and was not long-term. The examiner found that while coronary artery disease had been shown in the literature to result from long term effects of hypertension, there was no medical evidence that coronary disease conversely led to the development of hypertension. Lastly, the April 2014 examiner found that there was no evidence that diabetes mellitus, PTSD or coronary artery disease caused aggravation of the Veteran's hypertension. In support of that opinion, the examiner noted that the Veteran's blood pressure control had been managed with oral medications and adequate response based on records. There was no evidence that his hypertension had accelerated in its course as a result of any of his other conditions. The April 2014 VA medical opinions were provided by a physician, were based on an examination of the Veteran, a review of the claims file, and considered the Veteran's specific contentions as well as relevant medical literature. As the medical opinions included supporting rationale, the Board finds them to have substantial probative value. The Veteran has provided no competent medical opinions to the contrary; therefore, the April 2014 VA examiner's opinions are persuasive. The Veteran's own statements relating his hypertension to his service-connected disabilities are not competent evidence. As was previously noted, he is a layperson and lacks the training to opine regarding medical etiology; the question of whether one disability may be etiologically related to another is one that is medical in nature and may not be resolved by mere lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Hypertension is a disease of the vascular system and the record does not show that the Veteran has training or education in this medical field. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for hypertension, to include as secondary to herbicide agent exposure and service-connected disabilities. Accordingly, it must be denied. ORDER Service connection for hypertension, to include as due to herbicide agent exposure and service connected disabilities, is denied. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs