Citation Nr: 1807717 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 12-24 139A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus type II. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Brandt, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1969 to August 1970. This case comes before the Board of Veterans' Appeals (the Board) on appeal from June 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in August 2015 and May 2017, when it was remanded for additional development. FINDING OF FACT The preponderance of the evidence fails to establish that the Veteran's hypertension was initially manifested in service; manifested to a compensable degree within one year of service discharge; was causally or etiologically related to service, to include herbicide exposure; or was caused or aggravated by his service-connected diabetes mellitus, type II. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C.. §§ 1110, 1111, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran and his representative have not 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). Legal Criteria A veteran is entitled to VA disability compensation if the evidence demonstrates that a current disability resulted from an injury or disease incurred in, or aggravated by active military service. 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. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease that is initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2017). This includes disability made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection may also be granted on a presumptive basis for certain chronic diseases, including hypertension, if such diseases are shown to be manifest to a degree of 10 percent or more within 1 year after separation from active service. See 38 U.S.C. §§ 1101(3), 1112(a)(1), 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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 that service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the list of diseases provided in 38 C.F.R. § 3.309(e) 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. A presumption of service connection based on exposure to herbicides to include Agent Orange used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which VA has not specifically determined a presumption of service connection is warranted. See 72 Fed. Reg. 32, 30 (2007). Hypertension is not a disease presumptively associated with herbicide exposure. 38 U.S.C. § 1116 ; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Notwithstanding, service connection may be established with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167-68 (1999) (providing that the provisions set forth in Combee are equally applicable in cases involving claimed Agent Orange exposure). In this case, the record reflects that the Veteran served in Vietnam during active military service. The Veteran is therefore presumed to have been exposed to herbicidal agents, to include Agent Orange. 38 U.S.C § 1116(f). Determinations regarding service connection are based on a review of all of the evidence of record, including pertinent medical and lay evidence. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Under certain circumstances, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering evidence and determining its probative value, VA considers both the competency and the credibility of the witness. See Layno, 6 Vet. App. at 469. To deny a claim for benefits on its merits, the preponderance of the evidence must be against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) ("A veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' to prevail."). Legal Analysis The Veteran is seeking to establish service connection for hypertension. The Veteran contends that he has hypertension due to service, to include herbicide exposure and/or secondary to service-connected diabetes mellitus, type II. Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against service connection for hypertension. Hypertension was not incurred in service or during the initial post separation year. Hypertension, diagnosed many years after service, is not etiologically related to service, to include herbicide exposure, and is not secondary to service-connected diabetes mellitus type II. The Veteran has a current diagnosis of hypertension. See October 2015 VA examination. The record does not reflect that his hypertension first manifested during service or within one year of his separation from service. The Veteran's service treatment records are negative for any findings, complaints, or treatment related to hypertension, and the post-service medical reports do not document any findings of hypertension within the one year presumptive period following separation from service in August 1970. In addition, the evidence does not show, nor does the Veteran otherwise allege, that he continuously manifested symptoms of hypertension after his discharge from service. The first post-service treatment record documenting a history of hypertension in the claims file is from 2004, more than 30 years after his discharge from service. The Board has considered the Veteran's theory that hypertension is related to herbicide exposure in service or is secondary to service-connected diabetes mellitus. An October 2015 VA examiner opined that the Veteran's hypertension was less likely than not incurred in or caused by service. The examiner stated that the Veteran's diagnosis of hypertension made in approximately 2006 is not proximately due to service in Vietnam or related to Agent Orange exposure as hypertension is not a presumptive disease associated with exposure to Agent Orange or other herbicide during military service. The October 2015 VA examiner also opined that that the Veteran's hypertension is less likely than not proximately due to or the result of the Veteran's diabetes. In his rationale, the examiner cited a NIH National Heart, Lung, and Blood Institute (NHLBI) article which stated that the cause of hypertension is "changes, from genes or the environment, in the body's normal functions may cause high blood pressure." The examiner further stated that although many people with diabetes also have hypertension, medical research has not determined that one condition causes the other. A May 2017 Board decision found the October 2015 VA examiner's opinion inadequate because the examiner found no nexus between hypertension and herbicide exposure solely because hypertension is not on the presumed list. Further, the examiner failed to address the fact that the National Academy of Sciences (NAS) has indicated there is limited or suggestive evidence of an association between hypertension and Agent Orange. In regards to the relationship between the Veteran's hypertension and diabetes, the examiner failed to address aggravation. Pursuant to the May 2017 Board remand, an addendum VA opinion was obtained in May 2017. After review of the relevant medical evidence and taking the NAS study into account, the examiner opined that the Veteran's hypertension is less likely than not incurred in or caused by his service, including exposure to Agent Orange. The examiner explained that for most cases of hypertension an underlying cause cannot be determined but that there are numerous risk factors. The examiner stated that hypertension afflicts two-thirds of elderly Americans, to include Vietnam Veterans, and that the NAS study affirmed limited or suggestive evidence that hypertension is associated with herbicide exposure. The examiner further stated that thus far hypertension has not been a condition that VA presumes has been definitely caused by wartime herbicide exposure. Suggestive evidence is only a suggestion not a definite fact and association is not the same as causation. As such, the Veteran's hypertension is less likely than not incurred in or caused by service, including exposure to Agent Orange. The May 2017 VA examiner also opined that the Veteran's hypertension is less likely than not due to or the result of the Veteran's service-connected diabetes. The examiner stated that although the Veteran's diabetes preceded the diagnosed hypertension for approximately one year, the Veteran's diabetes has not caused or aggravated the Veteran's hypertension. The examiner specifically noted that the Veteran does not have any obvious chronic kidney disease on the basis of the available reported medical evidence, which would indicate aggravation. The examiner noted that it is well known that having diabetes increases the risk of developing high blood pressure however he stated that development of hypertension due to diabetes is a clinical situation where the diabetes usually precedes the hypertension for a number of years and is usually associated with renal insufficiency. The examiner noted that in this case diabetes only preceded hypertension for approximately one year. The October 2015 and May 2017 VA examiners based their opinions on pertinent medical records, examination of the Veteran (or review of an examination report), their medical knowledge and skill, and in the case of the May 2017 examiner, a review of medical literature. In light of this background and the rationale that they provided in their reports, the Board finds the examiners' opinions to be highly probative. See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-01 (2008). Particularly in light of the May 2017 examiner's opinion and rationale, and the fact that there are no medical opinions of record indicating otherwise, the evidence of record weighs against a finding that the Veteran's hypertension was caused or permanently aggravated by his service-connected diabetes or etiologically related to service, to include exposure to Agent Orange. The Board accepts that the Veteran is competent to report his symptoms, the onset of those symptoms, and treatment. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, in this case, the Veteran is not competent to diagnose himself as having hypertension that is etiologically related to herbicide exposure in service or that is caused by or aggravated by service-connected diabetes mellitus type II. This is because he lacks the requisite medical training to provide a competent opinion on complex medical matters that are not susceptible to lay observation. See Jandreau v. Nicholson, 492 F.3d. 1372 (2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (although it is error to categorically reject a non-expert opinion as to etiology, or nexus, not all questions of nexus are subject to non-expert opinion; whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case). In summary, the Veteran's service treatment records do not show hypertension in service or that hypertension was incurred during the initial post separation year. The Veteran did not receive treatment for or a diagnosis of hypertension until 2004, approximately 34 years after service. No medical professional has ever attributed the Veteran's hypertension to his active duty service, to include exposure to Agent Orange, and his service-connected diabetes, nor is the Veteran competent to make such a link. Based on the foregoing, service connection is not warranted. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for hypertension and the claim must be denied. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for hypertension is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs