Citation Nr: 1814219 Decision Date: 03/07/18 Archive Date: 03/14/18 DOCKET NO. 13-20 409 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for hypertension, to include as due to exposure to herbicides or as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1970 to June 1972, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. This issue was remanded by the Board for additional development in September 2015 and June 2017. FINDING OF FACTS 1. The Veteran's hypertension did not have its onset in service, did not manifest to a compensable degree within one year of separation from service, and is not otherwise related to service, to include as due to in-service herbicide exposure. 2. The Veteran's hypertension was not caused by or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for hypertension to include as a result of exposure to herbicides or as secondary to a service-connected disability, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). The Veteran, in a February 2018 Informal Hearing Presentation (IHP), through his representative, stated both that the VA had failed to provide the Veteran an examination regarding his assertion that his hypertension was related to his exposure to herbicides while in-service and that a VA addendum opinion issued in July 2017 (but noted to be entered into the Veteran's claims file in August 2017) was "grossly" inadequate. To address first the Veteran's claim that he was not provided an examination regarding his contention that his hypertension was related to his exposure to herbicides in-service, the Board notes that the Veteran was provided an in-person examination in November 2015. Based on her in-person examination of the Veteran, to include his report of his military service and medical history, the examiner issued an opinion which found that the Veteran's hypertension was less likely than not related to his exposure to herbicides in-service. The November 2015 examiner additionally issued the July 2017 addendum opinion which further elaborated on her in-person examination and its findings, again concluding that the Veteran's hypertension was not related to his exposure to herbicides in-service. Thus, the Board finds that the Veteran's argument that he was not afforded an in-person examination regarding his contention that his hypertension was related to his exposure to herbicides in-service both inaccurate and without merit. The Veteran next asserts that the November 2015/July 2017 examiner was not shown to have any experience, training, or competence in commenting on cardiovascular disorders, noting that she was "merely" a CRNP. He again asserts that competent rationales were not provided to include any analysis of the impact of herbicides. The Board finds these arguments also to be without merit. As an initial matter, the Board is entitled to presume the competence of the VA examiner and the adequacy of her opinion. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). Further, as explained by the United States Court of Appeals for the Federal Circuit in Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009), the appellant bears the burden of persuasion on appeal to show that such reliance was in error. See Rizzo v. Shinseki, 580 F.3d 1288 (citing Hilkert v. West, 12 Vet. App. 145, 151 (1999) and Butler v. Principi, 244 F.3d 1337 (Fed. Cir. 2001)). In this matter, the Veteran and his representative have submitted no evidence to suggest that the 2015/2017 VA examiner, whose designation as a CRNP establishes that she is a certified registered nurse practitioner, was not competent to render a medical opinion. Furthermore, nothing in the Veteran's assertion persuades the Board that the 2015/2017 examiner was not competent to render the opinions sought. As such, the Board presumes that the examiner was competent for such purposes. VA, then, satisfied its duty to assist when it provided a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions able to provide competent medical evidence, whether that is a doctor, nurse practitioner or physician's assistant. Cox v. Nicholson, 20 Vet.App. 563 (2007) (physician's assistant was competent to perform examination). Additionally, careful review of the November 2015 and July 2017 examination reports is silent for any omission or inconsistency that would render the reports inadequate. The Board finds that the examination reports are adequate to decide the merits of the case because the examiner was provided with an accurate history, the Veteran's history and complaints were recorded, and the examination report set forth detailed examination findings to include a nexus opinion, with adequate bases for the opinion. See 38 C.F.R. § 3.159(c)(4) (2017); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As to the Veteran's assertion that the examiner failed in the July 2017 report to offer an analysis of the impact of herbicides upon the Veteran's hypertension, the Board specifically notes the examiner's indication of her review of literature related to herbicides exposure, which were listed in her 2017 addendum report and, when listed out individually comprised over 10 pages of articles, and her clear opinion that the Veteran's hypertension was less likely than not related to his exposure to herbicides in service. Thus, the Board finds the November 2015 opinion and subsequent 2017 addendum opinion adequate. There is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the issue decided herein; consequently, the Board finds that any such failure is harmless. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board also notes it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). Service connection may be presumed for certain chronic diseases, to hypertension, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. 3.307, 3.309(a) (2017). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b) (2017). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptoms after service may serve as an alternative method of establishing service connection. 38 C.F.R. § 3.303(b) (2017). Continuity of symptoms may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptoms applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If a Veteran was exposed to a herbicide agent (e.g., Agent Orange) during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II or adult-onset diabetes mellitus), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2017). VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 -346 (1994); see also 61 Fed. Reg. 57586 -57589 (1996). VA amended the list of covered diseases presumed service-connected due to herbicide exposure as to include the conditions of all chronic B-cell leukemia's (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Parkinson's disease, and ischemic heart disease (IHD). Note 3 to section 3.309(e) provides that "the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease." See 75 Fed. Reg. 52,202 -53,216 (Aug. 31, 2010), to be codified later at 38 C.F.R. § 3.309(e) (2017). However, because hypertension is not a disease for which service connection can be presumed based on exposure to Agent Orange, his claim cannot be granted under this theory of entitlement. Notwithstanding the presumption, service connection for a disability claimed as due to herbicide exposure (Agent Orange) may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113(b) and 1116 and 38 C.F.R. § 3.303. A veteran who, during active military service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed to an herbicide agent. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). In the current matter, the Veteran served in the Republic of Vietnam during the Vietnam Era. Therefore, he is presumed to have been exposed to herbicides. Service connection may also be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). 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 caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran seeks service connection for hypertension, to include as due to his exposure to herbicides in-service and his service-connected diabetes. At the outset, the Board notes that VA regulations specify that the term hypertension means that the diastolic blood pressure is predominantly 90 mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, Diagnostic Code 7101. In addition, VA regulations specify that hypertension must be confirmed by readings taken two or more times on at least three different days. Id., Note (1). In his November 1970 induction report of medical history, the Veteran did not identify any symptoms, concerns, or problems with his heart or vascular system. His blood pressure was recorded at 128/70. In his concurrent medical examination, no such symptomology was found or noted. In June 1972, the Veteran's separation examination did not indicate or find any complaints, concern, or symptomology regarding the Veteran's heat or vascular system. The Veteran reported he was in good health. His blood pressure was recorded as 120/90. A December 2000 private medical record indicated that the Veteran's blood pressure was 178/98. In May 2011, a private medical record showed the Veteran's blood pressure to be 150/80. His hypertension was noted to not be under control and it was indicated he had stress around his life and home. In October 2011, a VA examination indicated the Veteran reported his hypertension began at the age of 59. He reported it being diagnosed after a physical, sometime between 2005-2007. He stated he was also diagnosed with diabetes mellitus at that same time. He reported taking medication for his hypertension daily. The VA examination determined that the Veteran had essential hypertension. In April 2012, a VA medical center (VAMC) record indicated the Veteran began treatment there. His blood pressure was recorded at 151/79. His medical history was indicated to include hypertension, which was noted to be uncontrolled. He reported not taking his medication that day. He was advised to cut down on salt in his diet. In November 2015, a VA examination indicated the Veteran had hypertension, but was not sure the on-set. He reported having been discharged in 1972 and not seeking health care due to lack of insurance and because he did not feel the need. He reported having had an EGD and 2 colonoscopies in the 1990's but did not remember anything being mentioned about his blood pressure readings on blood sugar. He reported being put on blood pressure medications sometime in 2000. He stated he was diagnosed with diabetes in 2005 after his physician had monitored his blood sugar for some years. His blood pressure recordings of note were found to be his entrance examination recording of 128/70, separation examination recorded at 120/90, and a recording from December 2000 of 178/98. The Veteran's hypertension treatment plan was found to include continuous medication. His blood pressure readings on the date of the examination were 182/76, 167/69, and 164/69. The examiner opined that the Veteran's hypertension was less likely than not incurred in or caused by his active duty service. The examiner found that the Veteran had one episode of elevated blood pressure of 120/90, which was classified as an isolated elevated blood pressure reading, as there were no other readings in proximity to that one. The examiner also found no indications of the Veteran having ongoing elevated blood pressure readings after service, until 28 years after his separation. The examiner, thus, found that the Veteran's hypertension was less likely than not incurred in or caused during service. The examiner also found that it was less likely than not that the Veteran's hypertension arouse to a compensable degree within one year of service as there were no medical records of evidence for the one year period after the Veteran's service. Additionally, the examiner stated that the Veteran's hypertension was less likely than not related to or aggravated by his service-connected diabetes as the Veteran's hypertension had been diagnosed in 2000 and treated continuously since that time with medication. His blood pressure readings after his diagnosis of and treatment for diabetes had remained within or near normal levels. The examiner stated that based on these facts it did not appear that the Veteran's hypertension had been aggravated by his diabetes. In July 2015, the Veteran, through his representative, submitted an IHP which provided information on the possible link between herbicide exposure and hypertension and also cited medical literature which purported to link the development of hypertension to diabetic patients, as insulin resistance was a risk factor in the development of hypertension. The IHP also addressed the determination in the October 2011 VA examination that the Veteran had "essential" hypertension, but did not define "essential" hypertension. In August 2017, an addendum report from the November 2015 examiner regarding the Veteran's hypertension was provided. The examiner stated that the Veteran's hypertension was less likely than not related to the Veteran's service, to include his exposure to herbicides while in-service. The examiner stated that the Veteran had one elevated blood pressure reading while in-service, and that the diagnosis of hypertension could not be made from a single elevated reading. The examiner further stated that there were a variable number of reasons for an isolated reading, including inaccuracies in the process of taking the reading. The examiner further stated that the Veteran's blood pressure reading of 120/90 indicated an elevated diastolic pressure, but that his systolic pressure was normal. The examiner also indicated that there were many risk-factors associated with the Veteran's hypertension, to include weight, diet, activity level, sodium intake, tobacco use, age, and family history. The examiner did not find that the Veteran's exposure to herbicides while in-service was a factor in his development of hypertension. The examiner stated that after review of numerous studies, which were listed in the examination report, the available evidence was not sufficient to establish a positive etiological relationship between the development of hypertension and exposure to herbicides. After the literature review, the examiner found that there was no convincing strong evidence in the literature to determine a direct link between exposure to herbicides and development of hypertension. Thus, the examiner found it less likely than not that the Veteran's hypertension had its clinical onset during active service or was etiologically related to any incident of service, to include the Veteran's exposure to herbicides while in-service. Additionally, the examiner opined that the Veteran's hypertension was less likely than not the result of, or aggravated beyond its normal progression by, the Veteran's service-connected diabetes. The examiner stated that as the medical evidence established that the Veteran had been diagnosed and treated for hypertension prior to his diagnosis and treatment for diabetes, it was less likely than not that hypertension was due to or the result of the Veteran's diabetes. Furthermore, the examiner found that the Veteran's hypertension had not been aggravated by the Veteran's diabetes. The examiner stated that based on the medical evidence, the Veteran's hypertension and diabetes control independently varied. Based on the medical evidence, the examiner found that there was no evidence to support that if his diabetes improved, so did his hypertension, or vice versa. Indeed the examiner found that when the Veteran's diabetes was at its best level of control, the Veteran's blood pressure systolic trended higher. The examiner stated that as the Veteran's blood pressure objective measures are more stable and controlled than his diabetes, his hypertension had not been aggravated or worsened by his diabetes. Finally, the examiner addressed the Veteran's concerns, as indicated in the July 2015 IHP from the Veteran's representative, regarding the identification of his hypertension as "essential." The examiner stated that the designation of the Veteran's hypertension as "essential" was accurate, as there is no secondary cause for hypertension has been identified. The examiner clarified, however, that her opinions regarding the Veteran's hypertension were not based on the Veteran's hypertension designation as primary or essential. Direct service connection necessitates that the Veteran's hypertension was related to an injury or disease incurred in service. The evidence of record, however, does not support such a finding. The Veteran's service treatment records (STRs) contain a single report of the Veteran having an elevated diastolic pressure reading at his 1972 separation examination, but do not show the Veteran to have had any other complaints of, treatment for, or symptomology concerning elevated blood pressure or hypertension. Importantly, the Veteran's STRs are void of treatment for high blood pressure and do not include a diagnosis of or treatment for hypertension. Thus, the Veteran's isolated episode of elevated diastolic pressure in-service does not establish that the Veteran had hypertension while in-service. Additionally, in the 1972 separation physical, the examiner did not diagnose the Veteran with hypertension or record concern regarding the Veteran's elevated diastolic pressure. Similarly, the 1972 STR did not indicate the Veteran was concerned about his diastolic pressure reading, as he stated he was in "good health." Similarly, there is no evidence of record which established that the Veteran was diagnosed with hypertension within one year of his active service, as such presumptive service connection is not warranted. The first documented report of continuous elevated blood pressure readings was in December 2000. The Veteran's pattern of elevated blood pressure readings beginning in December 2000, however, does not establish the required continuity of symptomology necessary for establishing direct service connection. Based on the medical evidence of record, the beginning of the symptomology of the Veteran's hypertension began in December 2000, over 28 years after his separation from service and his single reading of elevated diastolic pressure. The passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F. 3d 1330 (Fed. Cir. 2000); Shaw v. Principe, 3 Vet. App. 365 (1992). Thus, the medical evidence of record does not indicate that the Veteran was treating for high blood pressure or hypertension either in-service or within several years of service. The Board also notes that there is also no indication in any of the Veteran's medical records that either he or his private, treating physicians related his elevated blood pressure readings or his hypertension to his active duty military service. Additionally, the November 2015/July 2017 VA examiner reviewed the Veteran's claims file and examined the Veteran and found that his hypertension was less likely than not incurred in or related to his active duty service, as there was no indication of continuous elevated blood pressure readings or hypertension within service or within a reasonable time period after service. Thus, there is no medical evidence of record which links the Veteran's hypertension to his active duty service. As such, service-connection for hypertension on a direct basis is not warranted. Furthermore, there is no probative evidence of record suggesting that the Veteran's exposure to herbicides caused his hypertension. None of the Veteran's medical providers or other medical evidence of record establish that the Veteran's exposure to herbicides caused his hypertension. Additionally, the July 2017 examiner's addendum report specifically reviewed voluminous amounts of medical literature regarding exposure to herbicides and a link to hypertension and was not able to substantiate such a link. Thus, the probative medical evidence of record does not support a finding that the Veteran's hypertension was caused by his active service, to include exposure to herbicides. After the literature review, the examiner found that there was no convincing strong evidence in the literature to determine a direct link between exposure to herbicides and development of hypertension. Thus, the examiner found it less likely than not that the Veteran's hypertension had its clinical onset during active service or was etiologically related to any incident of service, to include the Veteran's exposure to herbicides while in-service. Additionally, the Board notes that none of the Veteran's treating medical providers have stated that his hypertension was related to his exposure to herbicides. Additionally, secondary service connection is also not established in regards to the Veteran's hypertension, as it would necessitate the disability being caused or aggravated by his service connected diabetes. Significantly, there is no medical evidence of record which found the Veteran's hypertension related to his diabetes. In fact, the November 2015/July 2017 VA examiner specifically found that the Veteran's hypertension was not associated with or aggravated by his diabetes, as his pattern of elevated blood pressure readings pre-dated the diagnosis of diabetes. Furthermore, VA examiner noted that the Veteran's hypertension was not aggravated by his service-connected diabetes, as the medical evidence of record indicated that the Veteran's hypertension was overall stable and that fluctuations were not found to be in conjunction with his fluctuations of his diabetes. Thus, the record is void of any evidence which would support a finding that the Veteran's hypertension was caused or aggravated by his service-connected diabetes. As such, the Board finds that secondary service-connection is not warranted. As stated previously, the Board finds the November 2015 and August 2017 VA examiner's medical opinions adequate. The Board also finds the examiner's reports highly probative both as to the Veteran's subjective reports and the resulting objective findings. The examiner possessed the necessary education, training, and expertise to provide the requested opinions. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Specifically, the examiner interviewed the Veteran, reviewed his claims file, and conducted a physical examination. Moreover, the examiners had the requisite medical expertise and had sufficient facts and data on which to base their conclusions. As such, the Board accords the November 2015 and July 2017 examination opinions great probative weight. The Board notes that VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). Significantly, the Board notes that neither the Veteran nor his representative has presented or identified any contrary medical opinion that supports the claim for service connection, on a direct, presumptive, or secondary basis, including any evidence contained in the medical records from the Veteran's VA and private treating physicians, that related the Veteran's hypertension to his active service, exposure to herbicides, or his service-connected diabetes. The Board has also considered the Veteran's lay statements, to include the arguments set forth in his IHPs. Although the Board recognizes that the Veteran is competent to describe his observable symptoms of hypertension, he is not competent to opine as to the etiology of his hypertension, as he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Veteran's lay opinions that his hypertension was related to his active service, to include his in-service exposure to herbicides, or his service-connected diabetes, do not constitute competent medical evidence and lack probative value. In sum, the claims file does not contain competent and credible evidence that the Veteran's hypertension was related to service, to include as due to his in-service exposure to herbicides, or as secondary to his service-connected diabetes. Accordingly, as the preponderance of the evidence is against the claim for service connection, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for hypertension, to include as due to exposure to herbicides or as secondary to diabetes mellitus, type 2, is denied. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs