Citation Nr: 1815151 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 10-41 915 ) 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. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Casey, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1967, October 1972 to May 1973, and February 1975 to February 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (ROs) in St. Petersburg, Florida. In relevant part, the October 2013 rating decision denied service connection for hypertension. The Veteran requested a Board hearing in his Form 9 substantive appeal; however, the Veteran withdrew his request in May 2016. This case was previously before the Board in June 2014 and June 2017, at which times the case was remanded for further development. As the requested development has been completed, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The most probative medical evidence demonstrates that the Veteran's hypertension was not incurred in or otherwise related to his period of active service or manifested within a year of his active service, and is not etiologically related to a service-connected disability. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.313 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria Service connection may be granted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in or aggravated by active military service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 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--the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease 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). Service connection may also be granted for chronic disabilities, such as hypertension, if the disability is shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may also be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 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 (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995)(en banc). Where a service-connected disability aggravates a non-service-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service in Vietnam for the purpose of the application of the presumption includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii). In Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), the Federal Circuit upheld VA's interpretation of § 3.307(a)(6)(iii) to require a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption. Service on a deep-water naval vessel off the shores of Vietnam may not be considered service in Vietnam for purposes of 38 U.S.C. § 101(29)(A), unless evidence shows that a Veteran went ashore. VAOPGCPREC 27-97. Analysis Turning to the Veteran's period of active duty, service treatment records are silent for complaints or a diagnosis of hypertension. At separation from the Veteran's last period of service, a February 1977 clinical examination found normal blood pressure and no abnormalities of the heart or vascular system. Post-service VA medical treatment records show a history of treatment for a diagnosis of hypertension. Accordingly, the first criterion for establishing service connection has been met. The question remains whether this condition is related to service or caused by a service-connected disability. The Veteran does not contend he was diagnosed with hypertension in service. Instead, he has attributed his hypertension to diabetes mellitus, type II (diabetes). See August 2012 Statement in Support of Claim. The Veteran has been found to be entitled to service connection for diabetes with an effective date of April 2012. At a June 2013 VA medical examination, the examiner opined that it is less likely than not that the Veteran's hypertension is caused or aggravated by his service-connected diabetes. The VA examiner cited medical literature which does not support that diabetes causes or results in hypertension. The examiner further noted that, in the absence of diabetic kidney disease, as in this case, diabetes does not aggravate hypertension. The Board finds that the June 2013 VA examiner's opinion is the most probative and persuasive medical evidence of whether or not the Veteran's hypertension was caused or aggravated by diabetes. The VA examiner provided an adequate rationale for the conclusion reached based on the Veteran's medical record and the current medical literature. See Monzingo v. Shinseki, 26 Vet. App. 97 (2012) (examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion). The record does not contain a medical opinion to the contrary concerning the whether the Veteran's hypertension was caused or aggravated by his service-connected diabetes. The Board acknowledges that the June 2013 examiner did not opine as to whether hypertension was incurred in, or is otherwise etiologically related to, his period of active service, or whether it manifested to a compensable degree within one year of discharge. See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). In June 2017, the Board remanded this matter to obtain a VA medical opinion regarding whether the Veteran's hypertension is directly related to service, including herbicide agent exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (stating that an adequate examination should consider all raised theories of entitlement); see also 77 Fed. Reg. 47,924, 47,926-27 (Aug. 10, 2012) (publishing a report of the National Academy of Sciences Institute of Medicine (NAS) concluding that there is "limited or suggestive evidence of an association" between herbicide agent exposure and hypertension). The Board also instructed the RO to obtain medical records to support the Veteran's statement that he was found to have essential hypertension in a routine physical examination in 1987. In a September 2017 statement, the Veteran indicated that the 1987 treating physician was deceased and his practice no longer exists. The Board has previously determined that the Veteran served in-country in Vietnam. Accordingly, the Veteran's in-country Vietnam service entitles him to the presumption of exposure to herbicides. 38 C.F.R. § 3.307(a)(6)(iii). Hypertension is not one of the diseases presumed to have been caused by in-service exposure to herbicides. See 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.309(e). However, on August 10, 2012, VA published in the Federal Register, Determinations Concerning Illnesses Discussed in National Academy of Sciences (NAS) Report: Veterans and Agent Orange: Update 2010. See Notice, 77 Fed. Reg. 47924 -47928 (2012). In that Notice, VA discussed NAS findings concerning hypertension and its possible relationship to herbicide exposure. VA noted that NAS had placed hypertension in the "Limited or Suggestive Evidence of Association" category. Pursuant to the Board remand, a VA medical examiner reviewed the Veteran's claims file in October 2017. The examiner concluded that it is less likely than not that the Veteran's hypertension was caused by presumed herbicide agent exposure. The examiner cited medical literature which does not establish a nexus between high blood pressure and herbicide agent exposure. The examiner also found no causative relationship between high blood pressure and presumed herbicide agent exposure in the Veteran's medical records. The October 2017 examiner also concluded that it is less likely than not that the Veteran's hypertension manifested during, or is otherwise related to, the Veteran's period of active service. The examiner reviewed the Veteran's medical history and found no evidence of a diagnosis of hypertension during service or within a reasonable time frame after service. Finally, the October 2017 examiner concluded that it is less likely than not that the Veteran's hypertension manifested to a degree of 10 percent or more with one year of separation from service. The examiner found no objective medical findings to establish hypertension within one year of separation in February 1977. The examiner cited medical records from February 1982 and June 1983 which were silent with regards to hypertension, and showed overall good health. The examiner reviewed the medical record and found no diagnosis of hypertension until May 2008, 30 years after service. After a review of the medical evidence of record, the Board finds that the October 2017 VA examiner's opinion is the most probative and persuasive medical evidence in this case concerning whether the Veteran's hypertension was related to service, including herbicide exposure, or manifested to a compensable degree within a year of service. The VA examiner reviewed the claims file and addressed the Veteran's assertions as to the origins of his hypertension. He also provided an adequate rationale for the conclusions reached based on the Veteran's medical record and the current medical literature. See Monzingo v. Shinseki, 26 Vet. App. 97 (2012) (examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion). Notably, the record does not contain a medical opinion to the contrary concerning the etiology of the Veteran's hypertension. The Board has thoroughly reviewed the Veteran's medical record. These reports do not provide an etiological opinion linking hypertension to the Veteran's period of active service, or to a service-connected disability. The Veteran's service treatment records are silent as to any complaints or a diagnosis of hypertension. Furthermore, there is no medical evidence of record linking the Veteran's hypertension to his military service. The Board acknowledges the Veteran's belief that his hypertension is related to his active duty service or to a service-connected disability. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (i.e., experiencing symptoms either in service or after service). See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Here, the Veteran is presumably competent to report symptomatology associated with high blood pressure. However, as a layperson without the appropriate medical training and expertise, the Veteran has not demonstrated the competency to opine as to the etiology of hypertension in this matter. The onset and etiology of hypertension are complex questions, and the Veteran has not been shown to possess the medical training and expertise required to provide such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, the most probative evidence is against a finding that the Veteran's hypertension is related to, or otherwise the result of, his period of active duty, including herbicide agent exposure, or secondary to his service-connected diabetes. The Board notes that the Veteran's service treatment records are silent as to a diagnosis of hypertension, and there is no probative medical evidence of record to suggest such a causal relationship between herbicide exposure and hypertension. Further, there is no indication that hypertension was diagnosed within one year of separation from active service. Finally, there is no evidence to show that hypertension was caused or aggravated by any service-connected disability, to include diabetes. The Board finds that the evidence does not support entitlement to service connection on a direct basis, as a result of exposure to herbicides, or on a secondary basis. As the weight of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes, is denied. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs