Citation Nr: 1809009	
Decision Date: 02/12/18    Archive Date: 02/23/18

DOCKET NO.  11-30 730	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Anchorage, Alaska


THE ISSUE

Entitlement to service connection for hypertension including as secondary to service-connected diabetes mellitus and as secondary to exposure to herbicides.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Cryan, Counsel






INTRODUCTION

The Veteran served on active duty from July 1967 to July 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska.  

In July 2016, the Board remanded the Veteran's claim for additional development.  

The Board notes that additional medical evidence was submitted and was not considered by the Agency of Original Jurisdiction (AOJ) in the last supplemental statement of the case (SSOC) dated in.  However, the evidence is either unrelated to or duplicative of other evidence already considered by the AOJ.  As such, the Veteran is not prejudiced by the Board's adjudication of the issue on appeal.  


FINDING OF FACT

The Veteran's hypertension did not originate in service or until more than a year following service, and is not otherwise etiologically related to service; hypertension was not caused or aggravated by a service-connected disability.


CONCLUSION OF LAW

Criteria for service connection for hypertension have not been met.  38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017).





REASONS AND BASES FOR FINDING AND CONCLUSION

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326(a).  In this case, required notice was provided.  Additionally, the Veteran has neither alleged, nor demonstrated, any prejudice with regard to the content or timing of VA's notices or other development.  See Shinseki v. Sanders, 129 U.S. 1696 (2009).  Thus, adjudication of his claim at this time is warranted. 

As to VA's duty to assist, 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 Veteran's service treatment records, VA treatment records, and private treatment records are associated with the claims file.  The Veteran indicated that he did not wish to appear for a hearing before the Board when he submitted his VA Form 9. 

The Veteran's claim was remanded in order to obtain an addendum medical opinion.   The directed development was accomplished and there is no prejudice for the Board to proceed.  See Stegall v. West, 11 Vet. App. 268 (1998). 

The Board finds that the VA examinations and opinions of record that were provided are fully adequate for rating purposes, as the examiners had a full and accurate knowledge of the Veteran's disability and contentions, and grounded the medical opinions in the medical literature and evidence of record.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Moreover, neither the Veteran nor his representative has objected to the adequacy of the opinions obtained during this appeal.  See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011).  

As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal.

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.

Establishing service connection requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 

Service connection may also be granted for certain chronic diseases, including hypertension, when such disability is manifested to a degree of 10 percent or more within one year of discharge from service.  See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.

When chronic diseases are at issue, the second and third elements for service connection may alternatively be established by showing continuity of symptomatology.  See Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013).

If a Veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases (to include diabetes mellitus) 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 further 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). 

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.  38 U.S.C. § 1116(f) (West 2014); 38 C.F.R. § 3.307(a)(6)(iii).

Even where the criteria for service connection under the provisions of 38 C.F.R. § 3.309(e) are not met, a Veteran is not precluded from establishing exposure to herbicides on a direct basis.

As an initial matter, the Board notes that a review of the Veteran's service personnel records reflects that the Veteran served in the Republic of Vietnam during the period in which presumption to exposure to herbicides is presumed.  As such, the Veteran is presumed to have been exposed to herbicides.  

A review of the Veteran's service treatment reports does not reflect any complaints, findings, or treatment for elevated blood pressure.  

At an October 2009 VA examination, the Veteran was diagnosed with well-controlled diabetes mellitus type II and well-controlled hypertension.  

At an October 2011 VA examination, the examiner reviewed the claims file and relevant medical evidence.  The examiner indicated that the Veteran was diagnosed with diabetes mellitus type II and hypertension in March 2009.  The examiner noted that the Veteran was on medication for his hypertension.  The examiner opined that it is less likely than not that service-connected diabetes mellitus type II is aggravating hypertension beyond the expected or natural degree of progression.  The examiner noted that the Veteran's blood pressure is controlled and has not progressed since his diagnosis.  

In April 2016, an opinion was obtained from a VA practitioner.  The practitioner reviewed the Veteran's claims and opined that it is less likely that the Veteran's service-connected diabetes mellitus caused or proximately aggravated the Veteran's hypertension.  The examiner's rationale was that the Veteran has normal age appropriate renal function without evidence of diabetic nephropathy.  

In February 2017, an opinion was obtained from a VA practitioner.  The practitioner reviewed the claims file and relevant medical evidence and opined that it is less likely than not that the Veteran's essential hypertension is directly or proximately due to or the result of the Veteran's potential exposure to Agent Orange.  The practitioner noted that the current state of medical knowledge precludes the establishment of a medical nexus between hypertension and Agent Orange exposure.  

In a July 2017 Hypertension Disability Benefit Questionnaire, A. Okobi, Jr., M.D., diagnosed the Veteran with hypertension and noted that the date of diagnosis was July 2017.  Dr. Okobi indicated that he did not review the claims file.  

In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for hypertension.

The Board finds that the competent evidence does not show a relationship between the Veteran's hypertension and his period of active service.  The only medical opinions of record indicates that it is less likely than not that the Veteran's hypertension is related to service, including exposure to herbicides.  The VA practitioners reviewed the claims file, considered the Veteran's contentions, and provided rationale to support the opinions.  There is no competent evidence to contradict these opinions. 

Hence, the Board finds that the competent evidence of record does not reveal a showing of a relationship of hypertension and the Veteran's period of service, including exposure to herbicides.  The Veteran has not submitted any competent evidence which provides a basis for the conclusion that hypertension is related to his period of service or that hypertension manifested within one year of the Veteran's separation from service.  38 C.F.R. §§ 3.307, 3.309.

Although the Veteran contends that he has hypertension related to his active service, specifically to exposure to herbicides during service, he has not submitted any competent medical evidence or opinion to substantiate his theory of entitlement. 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions).  The Veteran's opinion is not considered competent to provide the requisite etiology of the hypertension because such a determination requires medical expertise and training which he has not been shown to possess.  38 C.F.R. § 3.159(a)(1); see Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Therefore, the Veteran's assertion that his hypertension is the result of exposure to herbicides in service is not considered to be competent as he is not medically qualified to provide evidence regarding matters requiring medical expertise, such as an opinion as to etiology. 

Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for hypertension, and the claim is denied.


ORDER

Entitlement to service connection for hypertension including as secondary to service-connected diabetes mellitus and as secondary to exposure to herbicides is denied. 



____________________________________________
KELLI A. KORDICH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs