Citation Nr: 1817160 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 10-34 992 ) 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 asbestos and herbicide agents, and secondary to service-connected type II diabetes mellitus. REPRESENTATION Appellant represented by: Dale K. Graham, Agent ATTORNEY FOR THE BOARD B. Gabay, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from May 1963 to April 1967 with additional service in the Naval Reserve. During his period of active duty, he had service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In December 2014, the Veteran failed to report without good cause for a scheduled videoconference hearing before a Veterans Law Judge. No further development with regard to a hearing is necessary. 38 C.F.R. § 20.702 (2017). This matter was previously before the Board and remanded in February 2015 and May 2017 for additional development which has been completed. FINDING OF FACT The competent evidence of record shows that the Veteran's hypertension was not present during service or for many years thereafter, and is not attributable to in-service exposure to asbestos or herbicide agents, or to his service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted on a direct basis if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a secondary basis if there is evidence sufficient to show that (1) a current disability exists; and (2) the current disability was either caused or aggravated by a service connected disability. 38 C.F.R. § 3.310. Where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Additionally, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Further, it is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that his hypertension is related to service. Specifically, he contends that his hypertension is due to his exposure to herbicide agents or asbestos, or is secondary to his service-connected diabetes mellitus. As an initial matter, the Board notes that although the Veteran is presumed to have been exposed to herbicide agents based on his service in the Republic of Vietnam, hypertension is not a disease that VA recognizes as presumptively related to exposure to herbicide agents. Thus, presumptive service connection for hypertension as a result of any herbicide agent exposure is not warranted. See 38 C.F.R. §§ 3.307, 3.309(e). Regarding the Veteran's assertion that his currently diagnosed hypertension is related to in-service asbestos exposure, service personnel records show that the Veteran served on the USS Monticello as an electrician's mate. Accordingly, there is a likely chance the Veteran was exposed to asbestos in service. Nonetheless, there is no statute specifically addressing service connection for asbestos-related diseases, nor has the VA promulgated any specific regulations or presumptions for these types of cases. There also is no competent evidence to show that hypertension was noted in service or manifest to a compensable degree within one year of separation from service. Accordingly, presumptive service connection, as a chronic disease, is not warranted. See 38 C.F.R. §§ 3.303, 3.307, 3.309. This conclusion is supported by a VA medical opinion discussed in greater detail below. In short, service connection cannot be granted for hypertension on a presumptive basis as a chronic disease, or due to in-service exposure to herbicide agents or asbestos. Such a finding, however, does not preclude direct service connection based on actual exposure. See Combee v. Brown, 34 F.3d 1039(1994). Service treatment records reflect a finding of elevated blood pressure reading in April 1964; however, there is no actual diagnosis of hypertension while in service. The Veteran has stated that he was diagnosed with hypertension around 1983. There is no specific medical evidence of record to corroborate such a diagnosis at that time. Rather, the available evidence of record, including VA treatment records, notes the earliest diagnosis of hypertension to be July 1994. In any event, the Board finds that the Veteran has a current disability for service connection purposes. In a December 2017 VA medical opinion, an examiner opined that the Veteran's hypertension is not related to service, to include his elevated blood pressure readings in service, or any exposure to herbicide agents and asbestos. The examiner explained that noted the diagnosis of hypertension in 1994 and possible hypertension in 1993, but also noted that no records prior to those dates were available for review. The examiner noted the Veteran's elevated blood pressure readings while in Vietnam, but noted that the Veteran was in acute distress in both instances related to an allergic reaction. She explained that medical literature is clear that the body's acute response to stress includes elevated blood pressure to help supply the body with extra energy. The Veteran's documented elevated blood pressure readings during the acute allergic reactions are consistent with the body's fight or flight response. Further, the examiner explained that there is no evidence in the service treatment records to indicate a chronically elevated blood pressure or evidence of diagnosed hypertension. Rather, per the examiner, the first documented evidence of hypertension was 1994; 28 years following discharge from active duty. The examiner also indicated several risk factors were found in the Veteran's medical history strongly associated with hypertension, including his history of smoking, history of physical inactivity, and the fact that his brother has hypertension. The examiner also opined that there is no medical evidence to suggest exposure to Agent Orange or other herbicide agents is etiologically related to the development of hypertension. Additionally, the examiner noted that medical literature indicates that asbestos is primarily associated with parenchymal asbestosis, pleural fibrosis, mesothelioma, and lung cancer, and that there is no medical evidence to suggest exposure to asbestos is etiologically related to the development of hypertension. The Veteran's theory that his diagnosed hypertension was caused or aggravated by his service-connected diabetes mellitus, type II was also considered by a medical professional. The Veteran underwent a VA examination in October 2013, during which the examiner concluded that the Veteran's hypertension was less likely than not permanently aggravated or a result of an event or condition that occurred in service or within one year of discharge, to include diabetes mellitus, type II. The examiner explained that in order for there to be an aggravation or causation of the hypertension based on diabetes mellitus, there would need to be evidence of proteinuria in the urine testing. Yet, there was no evidence of proteinuria in any of the Veteran's post-service medical records. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for hypertension under any theory of causation. The Board acknowledges the Veteran's various lay assertions regarding the etiology of his hypertension; however, as a lay person, he is not competent to render such an opinion. See Jandreau, 492 F.3d 1376-77. The etiology of the Veteran's hypertension is a matter not capable of lay observation, and requires medical expertise to determine. It is well established that a layperson without medical training is not qualified to render a medical opinion regarding the diagnosis or etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159 (a)(1). In certain unique instances, lay testimony may be competent to establish medical etiology or nexus. Jandreau, 492 F.3d 1376-77. However, as the origin or cause of hypertension is not a simple question that can be determined based on mere personal observation by a lay person; the Veteran's lay statements are not competent to establish medical etiology or nexus. Id. He has not shown that he has medical or any specialized training or expertise to otherwise render his opinion competent. Accordingly, the lay statements from the Veteran as to the etiology of his hypertension are not competent evidence. Moreover, the Board affords great weight to the VA examiners' opinions which are competent and persuasive. The VA examiners are medical professionals who reviewed the claims file, considered and discussed the relevant clinical findings and Veteran's history, and provided cogent rationales to support the conclusions reached. In addition, the opinions of the VA examiners are not contradicted by any other competent medical opinion of record. In short, the competent and credible evidence of record indicates that the Veteran's hypertension is not etiologically related to service. In reaching this determination, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54-56. Neither the Veteran nor his 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). ORDER Service connection for hypertension, to include as due to exposure to asbestos and herbicide agents, and secondary to service-connected type II diabetes mellitus is denied. ______________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs