Citation Nr: 1820722 Decision Date: 04/06/18 Archive Date: 04/16/18 DOCKET NO. 13-13 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for hypertension, to include as due to Agent Orange exposure, and as secondary to service-connected ischemic heart disease with chronic congestive heart failure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Smith, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from October 1969 to July 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran testified at a hearing before the undersigned Veterans Law Judge in September 2014. A transcript of that hearing has been associated with the record. In July 2017, this appeal was remanded to the Agency of Original Jurisdiction to obtain an addendum opinion regarding aggravation, which has since been provided. As such, there has been substantial compliance with the remand directives, and further remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that remand not required where there was substantial compliance with remand directives). FINDING OF FACT The Veteran's hypertension did not manifest during his active service or within a year of his discharge, and is not otherwise etiologically related to his active service, Agent Orange exposure, or his ischemic heart disease with congestive heart failure. CONCLUSION OF LAW The criteria for service connection for hypertension, to include as due to Agent Orange exposure or secondary to ischemic heart disease, have not been met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.303(a)(b), 3.304, 3.307(b), 3.309(a)(e) (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Assist and Notify VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A and 38 C.F.R. § 3.159. For the issue decided herein, VA provided adequate notice in a letter sent to the Veteran in February 2010. The Board finds VA has satisfied its duty to assist the Veteran in the development of the claim as well. VA has obtained all identified and available service and post-service treatment records. Additionally, the September 2017 VA opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). The examiner considered the Veteran's symptoms and history and applied accepted medical standards and principles in rendering an opinion. As VA satisfied its duties to notify and assist the Veteran as to the issues of rheumatoid arthritis, gout, hypertension, and insomnia, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103(a), § 5103A, or 38 C.F.R. § 3.159 as to these issues and that the Veteran will not be prejudiced as a result of the Board's adjudication of these claims. Service Connection Presumption of Soundness Every veteran who served in the active military, naval, or air service after December 31, 1946, shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304(b). Thus, there is a presumption of soundness unless a condition is noted at entry. If a pre-existing disorder is noted upon entry into service, service connection may be granted based on aggravation of that disorder during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A pre-existing disability or disease will be considered to have been aggravated by active service when there is an increase in severity during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a)(b). Independent medical evidence is needed to support a finding that the pre-existing disorder increased in severity in service. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). In the case at hand, the record suggests that the Veteran may have had high blood pressure prior to service. Thus, the Board must first address whether the Veteran is presumed sound. The Veteran's service treatment records (STRs) indicate that his blood pressure during his August 1969 entrance examination was 120/80. A July 1970 examination indicates blood pressure of 130/80, and a July 1971 STR indicates blood pressure of 110/70. The physician's summary from the July 1970 Report of Medical History states that the Veteran had a history of high blood pressure. According to the summary, he was turned down twice for service, but he was okay at the time of the record. While the notes section from the August 1969 induction examination reported that 4 out of 6 of the Veteran's blood pressure readings were normal, the recorded blood pressure was 130/80, a measurement that does not meet the criteria for a diagnosis of hypertension for VA compensation purposes. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2016). Further, in the previous remand, the Board requested that the examiner address whether there is sufficient evidence to rebut the presumption of soundness. In the September 2017 VA opinion provided per remand, the examiner addressed this issue and indicated that there is no evidence of hypertension prior to service. The VA examiner stated that records reveal normal blood pressure upon induction and throughout service. The VA examiner also indicated that there are no objective findings of record to support the statement that the Veteran had a history of high blood pressure readings. The presumption of soundness can only be rebutted with clear and unmistakable evidence that a disorder preexisted service and that the disorder was not aggravated by service. 38 U.S.C. § 1111 (West 2014); 38 C.F.R. § 3.304(b) (2016). As the examiner reviewed the record and provided a rationale that is in line with the record, the Board finds the opinion probative. Based on this opinion and the other evidence of record, the Board finds that there is not clear and unmistakable evidence that the Veteran had hypertension prior to service. Thus, the presumption of soundness has not been rebutted, and the Veteran is presumed sound at entry. Hypertension Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Entitlement to service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Hypertension is considered chronic for VA purposes. There is a rebuttable presumption of service connection for certain chronic diseases, including hypertension, if the disease manifested to a compensable degree (a degree of 10 percent or more) within one year of separation from active service. 38 U.S.C. §§ 1101, 1113; 38 C.F.R. §§ 3.307, 3.309(a). If a chronic disease is shown in service or within the requisite time period described in 38 C.F.R. § 3.307(b), subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to establish the second and third elements of service connection. 38 C.F.R. § 3.303(b). In the case at hand, the Veteran contends that his hypertension is related to his active service. Alternatively, he has indicated that his hypertension is due to either in-service exposure to Agent Orange or to his ischemic heart disease. There is medical evidence of record pertaining to the Veteran's hypertension, which the Board will discuss chronologically. Records from Little Rock VA Medical Center (VAMC) consistently indicate hypertension diagnosed in 2001. The Board notes that additional records reflect treatment and medication for hypertension. However, as a diagnosis is already established, the Board will not discuss these reports. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but need not discuss each piece of evidence). In March 2013, the Veteran underwent a VA examination regarding his hypertension, and an opinion was provided pertaining to etiology. However, as noted in the previous remand, the Board finds that the March 2013 VA medical opinion on direct service connection is inadequate. In addressing whether the Veteran's hypertension was related to his presumed exposure to herbicide agents, the examiner only stated that hypertension was not one of the diseases associated with Agent Orange exposure. However, the availability of presumptive service connection for conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A May 2015 private opinion from Dr. S. states that the Veteran's hypertension was aggravated by his ischemic heart disease. However, this opinion provides an inadequate basis upon which to grant service connection as it does not include any rationale. In October 2015, the Veteran underwent another VA examination regarding his hypertension, and an opinion was provided pertaining to the etiology. The examiner noted that the onset of the Veteran's hypertension preceded his ischemic heart disease. The examiner also stated that ischemic heart disease is not a cause of hypertension. However, the examiner did not address aggravation. Thus, the Board determined that this opinion was inadequate. On remand, another VA opinion was provided in September 2017. The VA examiner opined that the Veteran's hypertension is not related to service and reasoned that the blood pressure readings during service or within a year of discharge do not meet the criteria for a diagnosis of hypertension. The examiner opined that the Veteran's hypertension is not related to Agent Orange exposure as hypertension is not one of the presumptive conditions of Agent Orange. The examiner also stated that medical literature does not indicate that hypertension is related to Agent Orange exposure. As to whether the Veteran's hypertension was caused by the ischemic heart disease, the examiner opined that ischemic heart disease is not a cause of hypertension. The examiner also stated that medical literature does not indicate that hypertension is related to ischemic heart disease. As requested in the previous remand, the examiner also addressed whether the Veteran's hypertension has been aggravated by his ischemic heart disease. The examiner opined that the Veteran's hypertension has not been aggravated by the ischemic heart disease. The examiner reasoned that there are no blood pressure readings or medical notes indicating aggravation. The examiner stated that there is no evidence of multiple drug changes to facilitate control where the Veteran's hypertension control had become more difficult than the natural progression of the disease. As to lay statements, the Veteran indicated in his May 2013 form 9 that he has been diagnosed with congestive heart failure and cardiac arrhythmia. He also stated that he had been on blood pressure medication for years. He indicated that without medication, his blood pressure would be at the maximum. He indicated that all of his conditions were related to Agent Orange exposure. Merits Having reviewed the evidence of record, medical and lay, the Board finds that service connection for hypertension is not warranted on any basis. At the outset, with regard to presumptive service connection, the Board notes that hypertension is not a presumptive condition listed in 38 C.F.R. § 3.309(e) and thus, service connection cannot be established on this presumptive basis. As hypertension is a chronic disease, the Board has considered service connection on a presumptive basis under 38 U.S.C. §§ 1101, 1113; 38 C.F.R. §§ 3.307, 3.309(a). However, the Veteran was not diagnosed with hypertension in service. The Veteran's in-service blood pressure results also do not meet the requirements for a compensable rating under the relevant diagnostic code, as required for the presumption of chronic diseases. The relevant code, Diagnostic Code 7101, provides that a compensable rating for hypertension, 10 percent, requires diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104. The Veteran's in-service blood pressure readings ranged between 110/70 at the lowest and 130/80 at the highest. Nor are the Veteran's in-service blood pressure levels indicative of a history of diastolic pressure of 100 or more. To the contrary, the STRs reflect that the Veteran never had a diastolic pressure of 100 or more in service. Accordingly, the Board determines that a chronic disability did not manifest during service. The record also does not reflect that the Veteran's current hypertension manifested within one year following service. The Veteran was discharged from service in 1971, and he was not diagnosed with hypertension until 2001. As a chronic disability also did not manifest within the presumptive period, the Board determines that the fact of chronicity in service or within the presumptive period is not adequately supported, and the presumption of service connection for chronic diseases does not apply. See 38 C.F.R. §§ 3.307; 3.309(a). With regard to entitlement to service connection for hypertension on a direct or secondary basis, the record establishes a current diagnosis for hypertension, Agent Orange exposure in service, and a service-connected disability of ischemic heart disease. Thus, the remaining element needed for both direct and secondary service connection is a nexus. The Board has considered whether the third element of service connection may be established based on continuity of symptomatology. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). While the record does not reflect complaints or treatment for hypertension between 1971 and the 2001 diagnosis, the Board has considered the Veteran's statements that his blood pressure has been consistently high since service. However, there are no documented readings or treatment to support these statements and blood pressure is not something that is subject to mere observation. The determination of hypertension is not lay observable and requires medical testing and knowledge. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Thus, the Board finds that without evidence of blood pressure readings either from home machine readings or readings taken at a medical office on which to base the Veteran's assertions, his lay assertions of consistently high blood pressure are not competent. However, even if the Veteran's statements were deemed credible and probative, his statements are outweighed by the probative medical evidence. As to the condition being related to Agent Orange exposure, the Board finds the October 2015 and September 2017 VA examiners' opinions that there is no medical literature or basis to support that hypertension is due to Agent Orange exposure to be the most probative evidence. The opinions are consistent with VA regulations and in line with medical literature regarding hypertension and Agent Orange. Given the probative evidence of record, the Board determines that a nexus has not been established, and service connection on a direct basis is not warranted. As to secondary service connection, the Veteran has a service-connected disability for ischemic heart disease. However, the probative medical evidence establishes that the Veteran's ischemic heart disease did not cause or aggravate his hypertension. The October 2015 and September 2017 VA opinions state that ischemic heart disease is not causally linked to hypertension. As the examiners reviewed the record and provided an opinion based on medical knowledge and training, the Board finds the opinions to be the most probative. Additionally, the September 2017 VA examiner also indicated that medical literature does not support such a link. Thus, weighing the evidence, the Board finds the most probative evidence does not establish a link between the Veteran's hypertension and his service-connected ischemic heart disease. The Board also finds the September 2017 VA examiner's opinion that the Veteran's hypertension has not been aggravated by his ischemic heart disease to be the most probative evidence on the question. The examiner noted what type of evidence would show that the Veteran's hypertension has been aggravated, and the examiner indicated that such evidence is not present in this case, the examiner provided a rationale based on medical knowledge and principles, and the opinion is consistent with the record, which does not reflect that the Veteran's hypertension has been difficult to control or that there has been a necessity for multiple prescription changes due to the condition being difficult to control. The private medical opinion that asserted that there was aggravation provided no rationale and thus, the Board finds that it is worth less probative weight than the 2017 VA examiner's opinion. Given the most probative evidence of record, the Board determines that the Veteran's hypertension has not been aggravated by his ischemic heart disease. In light of the evidence, the Board determines that the preponderance of the evidence does not support the Veteran's claim of entitlement to service connection for hypertension due to active service, to include Agent Orange exposure, as secondary to the service-connected ischemic heart disease, or as aggravated by his ischemic heart disease. Accordingly, service connection is not warranted. ORDER Service connection for hypertension, to include as due to Agent Orange exposure, and as secondary to service-connected ischemic heart disease with chronic congestive heart failure is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs