Citation Nr: 1819233 Decision Date: 03/30/18 Archive Date: 04/05/18 DOCKET NO. 08-07 529 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for hypertension, to include as a result of toxic substances. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1973 to September 1976, including service in the Republic of Korea from February 1976 to March 1976. He had additional military reserve service from August 1977 to August 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Milwaukee, Wisconsin, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2015, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The transcripts of hearings before a Decision Review Officer are also of record. The Board, among other things, remanded the issue on appeal for additional development in September 2015 and October 2017. FINDING OF FACT Hypertension was not manifest during or within one year of active service discharge; and, the preponderance of the evidence fails to establish that it is etiologically related to service including as a result of exposure to toxic substances. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor his representative has raised any issue 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 a duty to assist argument). There was substantial compliance with the prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.). Service Connection Claims Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including hypertension, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). Diagnostic Code 7101 provides ratings for hypertensive vascular disease (hypertension and isolated systolic hypertension). "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. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. See 38 C.F.R. § 4.104, DC 7101, Note (1) (2017). The requirement of two or more blood pressure readings on at least three different days applies only to an initial diagnosis of hypertension diagnosis and not to the assignment of a disability rating. See Gill v. Shinseki, 26 Vet. App. 386, 391 (2013). A veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, 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 C.F.R. § 3.307(a)(6)(iv). VA has established procedures for claims based on exposure to Agent Orange in locations other than the Republic of Vietnam, Thailand, Korea, or Johnson Island. M21-1, IV.ii.1.H.7.a. Certain disorders, including ischemic heart disease, if manifest to a degree of 10 percent or more for an herbicide exposed veteran may be presumed service connected. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. The term ischemic heart disease for presumptive service connection purposes under this law does not include hypertension or peripheral manifestations of arteriosclerosis, such as peripheral vascular disease or stroke, or any condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309, Note 2. The National Academy of Sciences (NAS) has reaffirmed its decision to place hypertension in "limited or suggestive evidence of an association" category. This category of association is defined to mean that the "evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence." Accordingly, VA has determined that the available evidence does not establish a positive association between herbicide exposure and hypertension that would warrant a presumption of service connection. 79 Fed. Reg. 20308-01 (Apr. 11, 2014). Even though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection. Stefl v. Nicholson, 21 Vet. App. 120 (2007). When a claimed disability is not included as a presumptive disability, direct service connection may nevertheless be established by evidence demonstrating that the disability was in fact incurred during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hypertension, a cardiovascular-renal disease, is a qualifying chronic disease. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2017). Service treatment records are negative for complaint, treatment, or diagnosis of hypertension. The Veteran's August 1976 separation examination included a blood pressure reading of 130/90 without diagnosis or additional comment. VA examination in March 1977 noted a blood pressure reading of 150/80. A November 1977 examination noted a blood pressure reading of 124/70. VA records in March 1981 report a reading of 130/74. Private medical records dated in March 1987 noted blood pressure in the sitting position was 148/98. Various subsequent treatment records include diagnoses of hypertension without comment as to etiology. An April 2007 private treatment report included an assessment of essential, benign hypertension. Accordingly, the Board finds that hypertension was not manifest during service or within one year of the Veteran's discharge from service. Service connection is not established on direct basis, one year presumptive basis, or continuity of symptomatology. The single blood pressure reading at separation without diagnosis or medical comment as to hypertension having been manifest at that time is found to be of little medical significance. A diagnosis of hypertension was not made at that time or for many years thereafter. The single elevated blood pressure reading was an outlier. The Veteran does not argue the contrary. Rather, the crux of his claim is based on his contention that he has hypertension as a result of active service, including as a result of exposure to herbicide agents or other toxic substances. In statements and testimony in support of his claim, the Veteran asserts he had been exposed to Agent Orange and other insecticides and herbicides during service. He states he was exposed to Agent Orange while serving at Fort Gordon, Georgia, in 1973 and Camps Carroll, Sarafi, and Casey in Korea. He claims that herbicide agents were stored on the grounds at Camp Casey. In support of his claim he provided articles, medical literature, and internet-source material in support of his claim. Service records show the Veteran served as a military policeman, including in the Republic of Korea during the period from February 1976 to March 1976. A January 2017 VA report noted efforts had been taken to verify the Veteran's exposure to Agent Orange at Fort Gordon and Camp Casey. It was noted that negative replies had been received and, in essence, that there was no evidence of his exposure to Agent Orange at Fort Gordon and Camp Casey. In an August 2010 private medical statement S.R.K., MD, MPH, noted diagnoses of hypertension and history of pesticide exposure and stated that he would conduct further research as to the issue of insecticides and diabetes. No comment was made as to the potential relationship between exposure to pesticides and hypertension. During a VA examination in August 2011, the examiner reviewed the claims file, took a history from the Veteran, examined the Veteran, and reviewed medical literature. The examiner opined that the Veteran's claimed disorders, presumably including hypertension, were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the evidence submitted by the Veteran showed that chemicals and herbicides were dumped in South Korea after the Veteran left the army, but considered the presence and exposure to industrial solvents, petroleum oils, lubricants (commercial grade), herbicides, and other industrial chemicals. VA examination in February 2017 found a diagnosis of hypertension was less likely incurred in or caused by the claimed in-service injury, event, or illness. The opinion is shown to have been based upon the a review of the record and a finding that the Veteran's exposure to herbicide agents, such as Agent Orange, or long-term exposure to organophosphate and organochlorine insecticides was not factually supported by his military personnel or treatment records. A November 2017 VA addendum opinion found it was less likely that the Veteran's hypertension was incurred in or caused by an in-service injury, event, or illness. Such was based upon a review of the available history, physical examination, exhaustive review of the appellate record, VA medical records, and medical literature. It was noted that the NAS medical evidence regarding Agent Orange exposure and/or industrial chemicals and hazardous materials exposure and hypertension had been reviewed. However, the examiner observed that the NAS had not, of yet, found a significant scientific, evidence-based, corollary or nexus. The examiner further found that service treatment records did not indicate the Veteran had toxic exposure to industrial chemicals and hazardous materials nor did his military occupational specialty indicate that he performed duties requiring exposure or handling of toxic chemicals. The examiner stated it was also common knowledge that the vast majority of Veterans with hypertension have lifestyle-related or idiopathic hypertension. Based on the above, the Board finds that he preponderance of the evidence also fails to establish that the Veteran's hypertension is etiologically related to service, including as a result of his exposure, to some extent, to herbicides and toxic substances. The February 2017 and November 2017 VA medical opinions are found to be persuasive and based upon adequate rationale. The examiner is shown to have reviewed the evidence of record, and to have adequately considered the lay statements and reported symptom manifestation history of record. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). There is no contrary medical opinion as to this matter. The Board finds that the Veteran's claims as to having been exposed to herbicides (not herbicide agents such Agent Orange) and other toxic substances during service, to some extent, are credible and consistent with the circumstances of his service. The February 2017 and November 2017 VA statements, however, are also found to have been based upon accurate findings of fact including that the available record does not indicate the Veteran had "toxic" exposure to industrial chemicals and hazardous materials in service nor that his military occupational specialty indicated he performed duties requiring exposure or handling of toxic chemicals. It is similarly an accurate statement that the evidence did not support a findings that he had long-term exposure to organophosphate and organochlorine insecticides. The Board further notes that a January 2017 memorandum from the Joint Services Records Research Center indicates that Agent Orange testing occurred at a remote forested location at Fort Gordon from July to October 1967, which was prior to the Veteran's service. There is also no evidence, and the Veteran does not contend, that he participated in Agent Orange testing at Fort Gordon. He has expressed disagreement with the service department with respect to how long Agent Orange remained present in the ecosystem of Ft. Gordon. The Board finds, additionally, that his allegations that Agent Orange contaminated the soil and water of Ft. Gordon while he was there are unsubstantiated by any supporting evidence. With respect to the Veteran's assertion of herbicide agent and toxin exposure at Camp Carroll, the Board has previously taken judicial notice of the Army's Comprehensive Report for Agent Orange at Camp Carroll (Comprehensive Report) cited to therein, as well as by news services such as the Stars and Stripes (https://www.stripes.com/news/8th-u-s-army-no-evidence-of-agent-orange-at-camp-carroll-1.145219). It was noted that this report stated that there was no evidence that Agent Orange was used at Camp Carroll. Further, while there was evidence that a variety of other chemicals, pesticides, and volatile organic compounds were detected in groundwater and soil samples, the Comprehensive Report stated that such chemicals were buried in 1978, nearly 2 years after the Veteran's service in Korea. The findings of the Comprehensive Report weigh against the Veteran's allegation of exposure to herbicide agent or any other toxic chemicals. Even if exposure to herbicide agents was established, which the Board does NOT concede, it is crucial to note that the VA examiner determined that there was insufficient evidence to link the Veteran's hypertension to his alleged exposure to herbicide agents or pesticides. The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Based upon a review of the overall evidence of record, the Board finds the February 2017 and November 2017 VA medical opinions are persuasive and based upon adequate rationale. With regard to articles and studies submitted by the Veteran, the Board notes that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509 (1998). In the present case, the articles submitted by the Veteran are not accompanied by the opinion of any medical expert. The Board concludes that the information is insufficient to establish the required medical nexus opinion. Consideration has also been given to the Veteran's personal assertion that he has hypertension as a result of active service. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The disability at issue is not a condition that is readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board acknowledges that the Veteran is competent to report observable symptoms, but there is no indication that any pertinent symptoms were observed during or within one year of service discharge. Nor is he shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise pertinent to the matter at issue. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. In conclusion, the Board finds that service connection for hypertension is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the Veteran's claim. ORDER Entitlement to service connection for hypertension, to include as a result of toxic substances, is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs