Citation Nr: 1807047 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 06-27 548 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for hypertension. ATTORNEY FOR THE BOARD E. Morgan, Associate Counsel INTRODUCTION The Veteran had active duty service from May 1969 to February 1971. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2006 rating decision from the RO in North Little Rock, Arkansas. This claim was previously before the Board. In January 2009, May 2012, May 2015 and June 2016 the Board remanded this matter for further development. The claim has returned to the Board for adjudication. In January 2015, the Veteran had a video-conference hearing before a Veterans Law Judge who is no longer with the Board. The Veteran was afforded the opportunity to have a new hearing before the Board. He was given 30 days to respond if he wanted a new hearing. However, there was no response. Thus, the Board presumes that the Veteran did not want a new Board hearing and will proceed with deciding the issue. FINDING OF FACT The Veteran's hypertension did not have its onset in service, was not manifested within one year following service discharge, is not the result of herbicide exposure, and is not proximately due to or aggravated by his service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for hypertension, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(e), 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). In January 2005, the Veteran filed a claim for service connection for hypertension on VA Form 21-526. On the VA form, the Veteran asserted that his hypertension began in 1988. In October 2008, the Veteran's former representative submitted an informal hearing brief contending that the Veteran's hypertension claim should be evaluated as having been aggravated by his benign prostate hypertrophy (BPH) which was not yet service connected. In May 2014, the RO granted service connection for the Veteran's residuals of prostate cancer with benign prostate hypertrophy (BPH) (BPH was granted on non service-connected aggravation) based upon the Veteran's herbicide exposure in the Republic of Vietnam. 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) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When service connection is established for a secondary disability, the secondary disability shall be considered a part of the original disability. Id. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately due to or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Exposure to herbicides is conceded if a Veteran served in the Republic of Vietnam or the waters offshore during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.313(a); see also Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (upholding VA's interpretation of section 3.307(a)(6)(iii) as requiring the service member's presence at some point on the landmass or the inland waters of Vietnam). 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, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41, 442-449 and 61 Fed. Reg. 57, 586-89 (1996); Notice, 64 Fed. Reg. 59, 232-243 (Nov. 2, 1999). The Board notes that 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. When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's service treatment records (STRs) are negative for symptoms or a diagnosis for hypertension. The Veteran's separation examination in January 1971 show normal heart and vascular systems and his blood pressure reading was 120/78. An April 2009 VA examiner reported that the Veteran had a diagnosis of essential hypertension. The examiner reported that he did not believe that the Veteran's hypertension became more severe due to his BPH. The examiner's rationale was that the Veteran's hypertension did not show end organ damage in his renal area and his creatine and blood urea nitrogen (BUN) were within normal limits. In a February 2011 hearing before the Board, the Veteran testified that he was not diagnosed with hypertension until 1994. In February 2013, a VA examiner reported that the Veteran was diagnosed with essential hypertension in 1994. The examiner reported that the Veteran did not have a history of diastolic blood pressure evaluation to predominately 100 or more. The examiner reported that it was less likely as not that the Veteran's hypertension was related to active duty service. The examiner reported that the Veteran's blood pressure readings during service were 104/74 and 120/78. The examiner reported that until 1994, many years after discharge, the Veteran did not have blood pressure readings fulfilling the requirements for a diagnosis of essential hypertension. Also, the examiner reported that the Veteran's BUN, creatine and eGFR (estimated glomerular filtration fate) levels were normal. The examiner concluded that it was therefore less likely as not that the Veteran's hypertension is related to his BPH. In October 2015, a VA examiner submitted an addendum medical opinion and reported that the Veteran's claim for direct service connection for hypertension was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner's rationale was that the Veteran's service military records did not show any objective evidence of blood pressure readings that correlate with essential hypertension; also the Veteran's diagnosis of hypertension was many years after discharge from military service. The examiner reported that the Veteran's hypertension was less likely than not proximately due to or the result of the Veteran's service-connected BPH. The examiner's rationale was that there are no repeated peer review studies showing a cause and effect relationship between BPH or prostate cancer and essential hypertension. The examiner noted that the Veteran is service-connected for diabetes mellitus type II, ischemic heart disease, prostate cancer and diabetic peripheral neuropathy with BUN and creatine being normal. The examiner reported that it was less likely as not that the Veteran's service-connected disabilities have made his essential hypertension worse. In June 2017, a VA examiner reported that there is no evidence found in peer review literature confirming a direct cause and effect relationship between herbicide exposure and hypertension, therefore it is less likely as not that the Veteran's hypertension is secondary to, caused by, worsened or aggravated by his BPH, prostate cancer or herbicide exposure. Concerning a relationship between hypertension and diabetes mellitus type II or its secondary condition, the examiner reported that the Veteran's renal function is normal, which makes it less likely as not that his hypertension is related to, secondary to or aggravated beyond the natural progression of the disease. The VA examiner reported that without documented blood pressure levels consistent with a diagnosis of hypertension in-service or within 12 months of discharge, it is less likely as not that the Veteran's hypertension is related to his active duty service. Moreover, the examiner reported that the Veteran's hypertension predated his heart disease, therefore it is less likely as not that his heart disease caused his hypertension. After careful review of the evidence of record, the Board finds that the Veteran's hypertension is not related to his military service. The VA rules, regulations and case law set forth above explains what is required for the Veteran to prevail in claim for direct service connection and secondary service connection. Regarding, direct service connection, the Veteran has a current diagnosis of hypertension and meets the first requirement for direct service connection. The second required element for direct service connection is an in-service incurrence or aggravation of the disease or injury. In this case, the Board notes that the Veteran's service treatment records show no treatment for hypertension, and examiners have said that the blood pressure readings in service were not indicative of hypertension. The Veteran's separation examination in January 1971 show normal heart and vascular systems. On the separation examination, the Veteran's blood pressure reading was 120/78. Also, in October 2015 the VA examiner reported that the Veteran's STRs were negative for objective evidence of hypertension. Therefore, the Veteran does not meet the second required element for direct service connection and cannot prevail in a claim for direct service connection. Further supporting the lack of evidence for direct service connection are the medical opinions that have stated that the current diagnosis of hypertension is not related to service. Regarding secondary service or aggravation, the Board notes that the Veteran is service connected for residuals of prostate cancer with benign prostatic hypertrophy (BPH) since May 2014. Therefore, the Veteran meets the first requirement for secondary service connection, which is having a service-connected disability. Next, the Board finds that the Veteran has a current disability of hypertension, therefore, he meets the second required element for secondary service connection. The third and final element for secondary service connection is a nexus between the current disability and the service-connected disability. Here, the Board finds that the evidence of record is negative for showing that the Veteran's hypertension is proximately due to or the result of any of his service-connected disabilities. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Specifically, the Board notes that the Veteran has been afforded multiple VA examinations with the same examiner, who has thorough knowledge of the claim's file. Pertinent evidence from the April 2009, February 2013, October 2015 and June 2017 the VA examiner reported that the Veteran's hypertension and BPH are not related and explained why there was no relationship. In October 2015 and June 2017 the VA examiner reported that there are no medical studies establishing objective evidence that the Veteran's hypertension is proximately due to or aggravated by his BPH. In October 2015 and June 2017, the VA examiner reported that none of the Veteran's service-connected disabilities caused or aggravated the Veteran's hypertension. The Veteran as a layperson is competent to report on matters observed or within his personal knowledge. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Jandreau v. Nicholson, 492 F.3d 1372-1377 (Fed. Cir. 2007); and Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). The Veteran filed a claim for service connection for hypertension but did not assert how he believes his hypertension is related to his service. The Veteran's former representative asserted that the Veteran's hypertension is related to his BPH. The Board finds that the evidence of record is negative for any competent evidence relating the Veteran's hypertension to any of the Veteran's service-connected disabilities. Moreover, in October 2015 and June 2017, the VA examiner specifically reported that there were no studies showing a relationship between the Veteran's BPH and his hypertension. In sum, the Board finds that the preponderance of the evidence is against a claim for service connection for 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 claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for hypertension is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs