Citation Nr: 20005579 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 05-33 561 DATE: January 23, 2020 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for a heart disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s hypertension began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran’s heart disease began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for heart disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1973 to June 1975 with additional service in the Army National Guard and Army Reserve. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2016, the Veteran had a hearing before the undersigned. These matters were previously remanded in a March 2018 Board decision for further development. See March 2018 BVA Decision. Service Connection Legal Criteria Generally, to establish a right to compensation for a present disability a veteran must show: (1) a present disability; (2) an 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, 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). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Hypertension must be confirmed by readings taken two or more time on at least three different days. For VA purposes, the term hypertension means that diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension means that systolic blood pressure is predominantly 160 mm or greater, with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.101, Diagnostic code 7101, Note 1. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis Herbicide exposure Diseases associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. Ischemic heart disease is listed under that section as one of these diseases. The laws and regulations pertaining to Agent Orange exposure do not provide for a presumption of service connection due to exposure to herbicide agents for veterans who have any of the listed diseases and served on active duty in Panama or the Panama Canal Zone. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The Veteran essentially contends that he was exposed to herbicide agents while serving in the Panama Canal Zone. There is no evidence that he served in the Republic of Vietnam, and he does not allege that he had such service. At his April 2016 hearing, he testified that Agent Orange canisters were shipped to Panama and stored in the jungles. He testified that he guarded canisters of Agent Orange during Operation Reahara. He stated that he also saw airplanes spraying the jungles with Agent Orange at which time he had to wear his gas mask. In support of his assertion, the Veteran has submitted an August 1999 article from The Dallas Morning News on testing of Agent Orange in Panama. He also submitted various Internet articles that discuss The Dallas Morning News article. The Dallas Morning News article reports that the U.S. military conducted secret tests of Agent Orange and other toxic herbicides in Panama in the 1960s and 1970s. A spokesman for the U.S. Southern Command, the operational authority in Panama at that time, stated that there was no evidence that Agent Orange was actually sprayed in Panama. An attorney for Vietnam Veterans of America stated that VA has acknowledged the use of Agent Orange or similar toxic herbicides contributed to the deaths of at least three veterans who were stationed in Panama in the 1960s and 1970s. The article notes that in testimony at a VA hearing in 1997, the former operations officer for herbicides at Fort Dietrich, Maryland, stated that several hundred drums of Agent Orange were shipped to Panama in the late 1960s for tests. The article states that this officer could not be reached for comment. The article notes that an unnamed veteran who served in Panama from 1968 to 1971 said that he witnessed the spraying of Agent Orange. In the May 2013 memorandum, JSRRC stated that it has not identified evidence of record that the tactical herbicide, Agent Orange, was used, stored, tested, or transported within the country of Panama or the Panama Canal Zone. JSRRC further stated that this determination is confirmed by the Department of Defense listing of dates and locations of herbicide tests and storage outside of Vietnam and the December 2012 report by A.L. Young Consulting, Inc, titled “Investigations into the Allegations of Agent Orange in the Canal Zone and Panama.” JSRCC concluded that its research has produced no evidence to support the potential for exposure to Agent Orange in the country of Panama or the Panama Canal Zone. In a July 2017 e-mail, Compensation Services noted that the Department of Defense has not identified any location in Panama, including Forts Sherman, Howard, Gulick, David, or Kobbe, where Agent Orange was used, tested, stored, or transported. Compensation Services stated that Agent Orange was developed for jungle combat operations in Vietnam and was used there from 1962 to early 1971. Compensation Services added that there were no combat operations in Panama during those years and that there was no need for Agent Orange use there. Compensation Services stated that Panama was not on the Agent Orange shipping supply line, which went directly from Gulfport, Mississippi, to South Vietnam, via merchant ships. Compensation Services indicated that all liquids, from cooking oil to jet fuel, were shipped in 55-gallon drums, so the presence of such drums or canisters does not demonstrate the use of Agent Orange. In that July 2017 e-mail, Compensation Services further stated that all use of Agent Orange by the United States military was terminated in 1971, two years prior to the Veteran’s claimed exposure. Compensation Services noted that all evidence shows that any aircraft spraying observed by the Veteran was likely insecticide used to kill mosquitos due to the prevalence of malaria in Panama. Compensation Services stated that research of Internet resources revealed no reference regarding an “Operation Reahara.” Compensation Services concluded that it cannot provide any evidence to support the claim and that there is no need to send a request to JSRRC. In a July 2017 memorandum, the JSRRC coordinator determined that the Veteran’s herbicide exposure has not been corroborated and therefore, no further herbicide development should be conducted. The Board notes that it is not bound by any VA determinations that other veterans were exposed to herbicide agents while serving in Panama or the Panama Canal Zone, such as a veteran noted in The Dallas Morning Herald article. As for the Veteran’s testimony and the reported testimony of the officer and the claim of an unnamed veteran that are discussed in The Dallas Morning Herald article, the Board places greater weight on the findings of Compensation Services and JSRRC than on the Veteran’s testimony and The Dallas Morning Herald article because their findings are based on more than just the testimonies of a few people. Instead, their findings are based on objective documentation - the Department of Defense listing of dates and locations of herbicide tests and storage outside of Vietnam, and the December 2012 report by A.L. Young Consulting, Inc, titled “Investigations into the Allegations of Agent Orange in the Canal Zone and Panama,” respectively. The Board also places great weight on the fact that all use of Agent Orange by the United States military was terminated in 1971, two years prior to the Veteran’s claimed exposure. Moreover, The Dallas Morning Herald article pertains to alleged use of Agent Orange in the late 1960s and apparently the early 1970s in Panama while Agent Orange was still be used in Vietnam whereas the Veteran claims exposure from 1973 to 1975. Therefore, as actual exposure has not been shown by service department record, and there is no credible evidence otherwise establishing exposure to herbicide agents, the Board finds that exposure to herbicide agents is not conceded, and service connection cannot be granted on a presumptive basis for disabilities as a result of herbicide agent exposure. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Entitlement to service connection for hypertension to include as secondary to diabetes mellitus and prostate cancer. The Veteran has alleged entitlement to service connection for hypertension on a direct basis, and on a secondary basis due to diabetes mellitus and prostate cancer. The Veteran is not service connected for diabetes or prostate cancer, accordingly, secondary service connection for hypertension as a result of diabetes and prostate cancer cannot be established. 38 C.F.R. § 3.310. Thus, the issue before the Board is entitlement to service connection for hypertension on a direct service basis. For the reasons discussed below, the evidence does not establish entitlement to service connection for hypertension. In service, the Veteran’s May 1973 enlistment examination did not note any symptoms of hypertension; the Veteran’s blood pressure was 134/80. See October 2014 STR-Medical at 19. The Veteran’s May 1975 separation examination noted blood pressure of 120/90. See October 2014 STR-Medical at 16. Because the record does not contain additional blood pressure readings during the Veteran’s active duty service, the Veteran’s single reading of 90mm during the Veteran’s separation examination does not establish hypertension in service. 38 C.F.R. § 4.101, Diagnostic code 7101, Note 1. The Veteran was diagnosed with new onset hypertension during a July 1991 hospital admission, 16 years post service. See August 1991 Correspondence at 4. The Veteran was afforded a VA examination in June 1998. The Veteran reported that when he works his diabetes and hypertension both get out of control. The examiner noted that the Veteran had been diagnosed with hypertension and prescribed hypertension medication, which the Veteran was not taking at the time of the examination. During the examination, the Veteran’s blood pressure was taken four different times, and found to be 130/80 each time. Consequently, the examiner reported that he was unable to identify hypertension on examination. See June 1998 VA examination at 5. Subsequent treatment records continue to note a diagnosis of hypertension, treated with medication. See generally May 2004 Medical Treatment Record- Government Facility, June 2004 Medical Treatment Record- Government Facility, September 2004 Medical Treatment Record- Government Facility and September 2018 CAPRI. The Veteran was afforded a VA examination in April 2019. The examiner noted a current disability of hypertension, with an initial diagnosis of 1984. Notably, the examiner was unable to find records that meet VA criteria of two blood pressures on the same day for three different days with diastolic pressure greater than or equal to 90mmHG or isolated systolic pressure greater than or equal to 160mmHG. However, based on a review of the claims file, the examiner concluded that there was sufficient documentation of elevated blood pressure and continued treatment for hypertension over the years to render a diagnosis of hypertension. See April 2019 C&P Exam at 3, 4. No etiology opinion was provided. The record does not substantiate a finding that the Veteran was diagnosed with hypertension in 1984. In fact, a May 1984 Army National Guard enlistment examination shows blood pressure of 126/86, with no notation of hypertension. During the May 1984 examination, the Veteran denied having high or low blood pressure and reported being in good health. See October 2014 STR-Medical at 27, 28. The Veteran also reported being in good health and denied high or low blood pressure during a November 1985 Army Reserve enlistment examination. During the examination, the Veteran’s blood pressure was 138/80, and no diagnosis of or treatment for hypertension is noted. See October 2014 STR at 23. Based on this evidence, the record does not support a diagnosis of hypertension in 1984. In September 2019 a VA addendum opinion was provided. The examiner opined that it is less likely than not that the Veteran’s hypertension is related to active service. As supporting rationale, the examiner asserted that the May 1975 separation exam which showed an elevated blood pressure of 120/90 is noted, however blood pressure readings prior to and subsequent to this date (enlistment of May 1973, enlistment of May 1984 and enlistment of November 1985) document normal blood pressure readings without noted medication treatment. The examiner concluded that, because a diagnosis of hypertension cannot be made based on a single elevated reading and given that in this case subsequent hypertension readings were normal, a diagnosis of hypertension dating back to 1975 cannot be substantiated by the evidence. See September 2019 C&P Exam at 2. Weight is afforded to this opinion as it is consistent with and supported by the evidence of record, which does not show a diagnosis of hypertension in service. Further there is no evidence of consistent elevated blood pressure during active duty military service and no diagnosis of hypertension prior to 1998. Ultimately, based on the amount of time that elapsed between the Veteran’s military service and an initial diagnosis of hypertension, in addition to the September 2019 negative nexus opinion which is supported by the evidence of record, the record does not substantiate a nexus between the Veteran’s current disability and military service. Entitlement to service connection for hypertension is denied. Entitlement to service connection for heart disability to include as secondary to diabetes mellitus and prostate cancer. At his April 2016 Board hearing, the Veteran testified that he has a current diagnosis of congestive heart failure, which he contended was related to agent orange exposure. The Veteran contends that his agent orange exposure occurred during his military service in Panama. See April 2016 Hearing Transcript. As reflected above, the Board has found this assertion not credible and will not consider his claim on the basis of the presumption. Additionally, the record does not establish entitlement to service connection for heart disability on a direct service basis, as there is no evidence of a nexus between the Veteran’s military service and his current disability. The Veteran’s May 1973 enlistment examination does not note any cardiovascular abnormalities. See October 2014 STR-Medical at 18. During his May 1975 separation examination, the Veteran was noted to have some moderate cardiomegaly. See October 2014 STR-Medical at 13. However, there is no evidence of treatment for a heart disability during the Veteran’s active military service. Post active duty service, January 1987 medical records note the Veteran’s heart as normal. See January 1987 medical Treatment Record-Government Facility at 4. In July 1991 the Veteran presented to the hospital with complaints of left sided chest pain. However, an echocardiogram (EKG) showed normal sinus rhythm and a chest x-ray showed no active disease. See August 1991 Correspondence. The Veteran again reported chest pain during an October 1996 doctor’s visit. The Veteran was admitted to the hospital and ruled out for myocardial infarction and had no EKG changes. Lateral chest x-rays were repeated, and no significant changes were seen from 1989. See October 1996 Medical Treatment Record- Government Facility at 2, 3. The Veteran was afforded a VA examination in June 1998. The examiner noted that there was some reasonable question about the Veteran’s heart and some abnormalities may be present. However, chest imaging showed the Veteran’s cardiomediastinal silhouette and hila were within normal limits. See June 1998 VA examination at 6, 10. A June 2004 letter from the Veteran’s physician noted that the Veteran was under treatment at the VA medical center for coronary heart disease. See May 2004 Medical Treatment Record-Government Facility at 1. Subsequent treatment records continue to note treatment for coronary artery disease. See generally May 2004 Medical Treatment Record- Government Facility, June 2004 Medical Treatment Record- Government Facility, September 2004 Medical Treatment Record- Government Facility, September 2018 CAPRI. The Veteran was afforded a VA examination for his heart in January 2012. The examiner noted a diagnosis of coronary atherosclerosis. The examiner opined a negative nexus opinion, noting no current definitive diagnosis of heart disease. The examiner noted that the Veteran’s history of chest pain was attributed to anxiety, with an evaluation stated that no cardiovascular abnormalities had been found. See January 2012 VA examination. The Veteran was afforded another VA examination for his heart in December 2017. The examiner noted heart conditions of myocardial infarction diagnosed by history in 1984, coronary artery disease (CAD) diagnosed in 1996 and congestive heart failure (CHF) diagnosed in 2015. See December 2017 C&P Exam. In a separate December 2017 medical opinion, the examiner opined that it is less likely than not that the Veteran’s cardiac disabilities were related to active duty service. As supporting evidence, the examiner noted that available service treatment records (STRs) are negative for coronary artery disease, myocardial infarction or congestive heart failure during active duty service. He further asserted that the borderline cardiomegaly notated on chest x-ray in service is not specific or diagnostic of cardiac disease in the absence of findings. See December 2017 C&P Exam. In a subsequent September 2019 addendum opinion, the examiner asserted that it is less likely than not that any current heart disease to include acute, subacute, or old myocardial infarction; CAD; and CHF is related to active service. As supporting rationale, the examiner explained that the May 1975 chest x-ray report of "moderate cardiomegaly" and the August 1976 chest x-ray report of "borderline cardiomegaly" are non-diagnostic. While cardiomegaly as an x-ray finding may be seen in patients with congestive heart failure and/or cardiomyopathy, it may also present as a technical artifact on images taken without the patient being in full inspiration. In this case, several chest x-ray reports are of record dating back to the 1990s, some of which notate poor inspiration with or without cardiomegaly and with or without other findings suggestive of congestive heart failure as Veteran's cardiac disease manifested. The separation exam report of May 1975 documents no cardiopulmonary complaints or findings to support active cardiac disease at that time. The VA exam from August of 1976 notates complaints of atypical chest pain symptoms (in the setting of chronic "anxiety reaction") with normal BP and exam findings (including an ECHO report documenting normal cardiac function and chamber sizes) which are summarized as "No cardiovascular disease found." Further, the finding of sinus bradycardia by EKG from 1976 is likewise nonspecific for cardiac disease or pathology and is often observed in physically fit individuals without cardiac disease. The Board affords probative weight to both the December 2017 and September 2019 opinions, as they are consistent with and supported by the evidence of record. Ultimately, while the record shows that the Veteran has a current heart disability, the record does not establish a nexus between the Veteran’s heart disability and military service. The record does not substantiate the Veteran’s claims that he was exposed to herbicide agents, to include agent orange during military service. Finally, the Veteran is not service connected for diabetes mellitus or prostate cancer, therefore service connection secondary to either disability cannot be established. Based on the evidence of record, entitlement to service connection for a heart disability is denied. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Wimbish 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.