Citation Nr: 20004755 Decision Date: 01/23/20 Archive Date: 01/21/20 DOCKET NO. 09-11 477 DATE: January 23, 2020 ORDER Service connection for hypertension, including as due to Agent Orange exposure, and to include as secondary to diabetes mellitus, is denied. FINDINGS OF FACT 1. The Veteran’s hypertension is not due to exposure to an herbicide agent, such as Agent Orange, during service. 2. The Veteran’s hypertension is not secondary to his diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for hypertension, as due to agent orange exposure, and to include as secondary to diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy from July 1965 to April 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2007 rating decision from the San Diego, California Regional Office (RO) for the Department of Veterans Affairs (VA). In July 2015, the Veteran testified at a video conference hearing in Los Angeles, California before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims filed. In March 2018, the Board remanded the Veteran’s claims for further development. After compliance with the associated remand directives, the case is back in front of the Board for further consideration. 1. Hypertension The Veteran contends that his hypertension is due to his time in service with the United States Navy. Neither the appellant nor his representative have raised any issues or concerns 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 (applying Scott’s duty to assist argument). Service connection will be granted for disability resulting from disease or injury incurred or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence establishing three elements: (1) the existence of a present disability; (2) in-service incurrence or aggravation of 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, 1167 (Fed. Cir. 2004). Service connection may also be granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disorder. See 38 C.F.R. § 3.310(a) (2017); Allen v. Brown, 7 Vet. App. 439 (1995). VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e) (2018). A Veteran who had a period of active service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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) (2018). The last date on which a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. A Veteran who had a period of active service 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 herbicide agents 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. The term “herbicide agent” means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. If a Veteran was exposed to an herbicide agent during active service, the diseases enumerated at 38 C.F.R. § 3.309(e) 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. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii) (2018). However, Note 2 of 38 C.F.R. § 3.309(e) states that, for purposes of this section, 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. In accordance with 38 C.F.R. § 3.307(a)(6), the Veteran does satisfy the timing requirements of his foreign service to warrant presumptive exposure to Agent Orange or other herbicides. The Veteran served on the U.S.S. Guide, which served off the coast of Vietnam laboring to keep clear the shipping lanes. In an April 2016 letter from an Archives Specialist from the National Archives at College Park, Maryland, confirmed that the ship anchored in Vietnam on March 1, 11, and 23, as well as September 13, 1967. They provided the requisite deck logs from these dockings. The Veteran provided a letter from February 1968 to show that he had served aboard the U.S.S. Guide from January 21, 1966, to cover the time that that the ship docked in Vietnam. Furthermore, the Agency of Original Jurisdiction has conceded exposure to herbicides in a January 2020 memorandum. However, as previously stated, hypertension is not on the enumerated list of presumptive service-connected diseases as due to herbicide exposure, presumptive service connection is not warranted. Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has held that an appellant is not precluded from established service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). That is to say, the Agent Orange presumption does not preclude the Veteran from establishing direct service connection with proof of actual direct causation. The issue of service connection for hypertension initially came before the Board in November 2015. This was remanded for several reasons. The Veteran’s claim for service connection secondary to his claim for diabetes mellitus was inextricably intertwined with his July 2015 diabetes mellitus claim and could not be considered at the time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (determining that issues are inextricably intertwined when a decision on one issue would have a “significant impact” on a claim for the second issue). Additionally, the Veteran was scheduled for a VA examination to determine the nature, extent, and etiology of his diagnosed hypertension. The examiner was asked to determine whether it is at least as likely as not (i.e., 50 percent probability or greater), that the Veteran’s diagnosed hypertension was incurred in or caused by service injury, event, or illness, including any exposure to Agent Orange. The examiner was also asked to determine whether it is at least as likely as not (i.e., 50 percent probability or greater), that the Veteran’s hypertension was caused or chronically-worsened (i.e., aggravated) by the Veteran’s currently-diagnosed diabetes mellitus. If aggravated, the examiner was asked to specify the baseline of disability prior to aggravation, and the permanent, measurable increase in disability resulting from the aggravation. The examiner was asked to address this likelihood without regard to RO’s determination as to whether or not the Veteran’s diabetes mellitus is service-connected. The Veteran participated in a VA examination for hypertension in December 2017. In the examiner’s January 2018 opinion, he stated that the Veteran’s hypertension is less likely than not (less than 50 percent probability) was incurred in or caused by service injury, event, or illness, including any exposure to Agent Orange. The examiner stated that “the Veteran has reported having hypertension for 11 years to which the condition is after the military service,” further findings that the documentation lacks medical evidence to show the direct causal relationship of hypertension and military service including exposure to agent orange, and there is limited evidence to suggest the onset of hypertension in service. Further, the examiner found that the Veteran’s hypertension is less likely than not (less than 50 percent probability) caused by or chronically-worsened (i.e., aggravated) by the Veteran’s currently diagnosed diabetes mellitus. After review of the record, the examiner found that the VAMC shows a diagnosis of hypertension in June 2017 but a diagnosis of diabetes mellitus in February 2007, suggesting that the hypertension condition in relation to the diabetes mellitus condition are independent from each other rather than a cause. Additionally, a December 2017 examination concerning the diabetes did not list hypertension as a complication of diabetes mellitus that was at least as likely as not due to or aggravated by the diabetes mellitus. Following the examination, the issue came back before the Board in March 2018. The Board then found that the previously provided opinions required clarification, and an additional remand was issued. Specifically, the examiner was asked to comment on the National Academy of Sciences 2010 and 2012 updates regarding possible causation of hypertension by Agent Orange exposure. The examiner was asked to address the likelihood of hypertension due to exposure without regard to the RO’s determination as to whether or not the Veteran was exposed to herbicide agents. Additionally, the examiner was asked to clarify the statement concerning the Veteran’s diagnoses of hypertension four months after his diagnosis of diabetes mellitus “suggesting that the hypertension condition in relation to the [diabetes mellitus] condition are independent from each other rather than a cause.” In April 2019, a new examiner offered an addendum to the previously rendered opinions. The examiner found that the National Academy of Sciences 2010 and 2012 research findings regarding possible causation of hypertension by Agent Orange exposure were out of date. He stated that the publication does not say that Agent Orange caused later hypertension, reiterating that association does not imply causation. The examiner further stated that in research publications such as this, self-reported data is subject to response bias and is not as reliable as other more objective methods of data collection. Further, the examiner opined that the Veteran’s hypertension is less likely than not (less than 50% probability) proximately due to or the result of the Veteran’s diabetes mellitus. The examiner opined that diabetes can cause hypertension when there is significant kidney disease due to the diabetes. In this case, the Veteran does not have significant kidney disease. Additionally, the Veteran has satisfactory creatine levels, satisfactory GFR, and generally good renal function, which would not lead to secondary hypertension. After reviewing the totality of the record, the Board finds that the VA examinations are the most probative evidence of record. As stated, the examiner has indicated that the Veteran’s hypertension is less likely than not related to his time in service, as due to agent orange exposure, and to include as secondary to diabetes mellitus. The examiner provided detailed rationales for the opinions offered and explained how the evidence does not show that agent orange is a catalyst for hypertension and the previously relied upon research was outdated and unreliable. The Veteran’s medical records do not show the requisite kidney issues to lead to hypertension. While the Veteran has provided statements from treating doctors concerning the relationship of his diabetes to agent orange, these statements do not address the relationship of the hypertension to agent orange or even the relationship between the hypertension and diabetes. Therefore, the Veteran’s claim for service connection for hypertension is denied. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Iannone, Attorney Advisor The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.