Citation Nr: 20005801 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 09-23 484A DATE: January 23, 2020 ORDER Entitlement to service connection for hypertension, to include as due to Agent Orange exposure or as secondary to service-connected diabetes mellitus type II, is denied. FINDING OF FACT The Veteran's hypertension is not presumed to be caused by exposure to Agent Orange in service, nor is it shown to be causally or etiologically related to any disease, injury, or incident in service, or was caused or aggravated by any of his service-connected disabilities, including type II diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for hypertension, to include as due to Agent Orange exposure or as secondary to service-connected diabetes mellitus type II, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 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 on active duty from July 1966 to June 1969. This matter comes before the Board of Veterans’ Appeals (hereinafter Board) on appeal from a September 2008 rating decision, which denied the Veteran’s attempt to reopen his claim of entitlement to service connection for hypertension, including as due to Agent Orange exposure or secondary to service-connected type II diabetes mellitus. He perfected a timely appeal to that decision. In a June 2017 decision, the Board determined that new and material evidence had been submitted and reopened the claim of entitlement to service connection for hypertension, including as secondary to Agent Orange exposure or as secondary to diabetes mellitus. The Board then remanded the case for additional development of the record and a de novo review of the evidence. Following the requested development, a supplemental statement of the case (SSOC) was issued in December 2017. In April 2018, the Board again remanded the case to the RO for still further evidentiary development. Following the requested development, an SSOC was issued in October 2019. 1. Entitlement to service connection for hypertension, to include as due to exposure to Agent Orange or as secondary to service-connected type II DM. The Veteran contends that his hypertension is related to his active duty service and his exposure to Agent Orange (herbicide agents) while in service. In the alternative, the Veteran believes that his hypertension developed as a result of his service-connected diabetes mellitus, type II. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2018). "To establish a right to compensation for a present disability, a Veteran 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"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310 (a) (2018). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection for certain chronic diseases, including hypertension, may also be established based upon a legal "presumption" by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Here, VA and private treatment records show the Veteran was not diagnosed with hypertension until February 2000, more than 31 years after his separation from service and outside of the applicable presumptive period. Thus, there is no evidence that the Veteran developed hypertension within one year from discharge from service to warrant application of this presumption. The questions for the Board are whether the Veteran's hypertension is related to his active service, to include exposure to herbicide agents, or whether his hypertension is proximately due to or the result of or was aggravated by his service-connected diabetes mellitus type II or his heart condition. The Board concludes that, while the Veteran has a current diagnosis of hypertension, the preponderance of the evidence is against finding that the Veteran's hypertension is directly related to service or proximately due to or the result of or aggravated beyond its natural progression by his service-connected diabetes mellitus type II or his CAD. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310 (a). The Veteran contends that his hypertension is related to exposure to herbicide agents in service. In this regard, the Board notes that VA has conceded in-service exposure to herbicides for the Veteran as he served on active duty on land in the Republic of Vietnam during the Vietnam War. Although the Veteran was exposed to herbicide agents, hypertension is not one of the diseases listed as a disease associated with exposure to herbicide agents. See 38 C.F.R. § 3.309 (e) (2018). Hypertension is not a disorder that may be presumed related to herbicide exposure. 38 C.F.R. §§ 3.307, 3.309. However, the National Academy of Sciences (NAS) Institute of Medicine's Veterans and Agent Orange: Update 2010 (2010 Update) concluded that there is "limited or suggestive" evidence of an association between exposure to Agent Orange and hypertension. However, this alone is insufficient to establish nexus between hypertension and herbicide exposure. As the file does not include any additional evidence supporting a nexus between the Veteran’s hypertension and herbicide exposure, the Board finds that further consideration of presumptive service connection due to exposure to herbicide agents is not warranted. See 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). When a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). As noted above, the record reflects that the Veteran is currently diagnosed with hypertension. The record also indicates that hypertension was initially diagnosed in February 2000. And, recent DBQ examinations in July 2017, January 2019 and August 2019 reflect diagnoses of hypertension. As such, the Board finds that the first criterion for establishing service connection has been met. The question, then, is whether this condition arose in or is related to military service. Regarding the second element of service connection, the STRs are completely silent with respect to any finding of hypertension. Significantly, the enlistment examination in March 1966 noted a blood pressure reading of 102/74, and the May 1969 separation examination recorded a blood pressure reading of 120/80. Therefore, the STRs do not show a finding or diagnosis of hypertension during service. Moreover, the record does not include any evidence of a direct relationship between hypertension and the Veteran's active service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303 (a), (d). Rather, following a review of the claims file in July 2017, a DBQ examiner opined that the claimed condition was less likely than incurred in or caused by the claimed inservice injury, event, or illness. The examiner stated that, after thoroughly reviewing military and VA treatment records, no record found that support the theory that hypertension first manifested during service. The examiner further noted that the Veteran reported that hypertension was diagnosed in 1990s well after his military service when he started to be seen at the VA. Consequently, the examiner concluded that hypertension most likely did not manifest during Veteran’s period of service. With respect to service connection on a secondary basis, the evidence fails to show that the Veteran's hypertension was either caused by or aggravated by his service-connected disabilities. In this regard, the July 2017 DBQ examiner opined that the claimed condition is less likely than not proximately due to or the result of the Veteran’s service-connected disabilities. The examiner observed that the records note that PTSD was formally diagnosed August 30, 2000; however, in that note, hypertension was already reported as past medical history. As such, the examiner stated that it was his belief that hypertension was manifested in the 1990s way earlier than the diagnosis of PTSD which was diagnosed in 2000. The examiner stated that, if both diagnoses are linked, Veteran’s blood pressure should be normalized when he is not aggravated by PTSD and therefore unlikely need multiple anti-hypertensive medications to control blood pressure. The examiner thus concluded that he did not believe that the Veteran’s hypertension was due to his service-connected PTSD. The examiner further stated that, based on the medical evidence and the records reviewed, he also believed that Veteran’s hypertension is not related to any of his service-connected conditions, to include coronary artery disease (CAD), peripheral vascular disease (PVD), diabetes mellitus type II (DM2) with ED, tinnitus or peripheral neuropathy. In January 2019, Veteran’s claims file was referred to a DBQ examiner for a medical opinion as to whether the Veteran’s hypertension is related to his service-connected diabetes mellitus. The examiner opined that the claimed condition is less likely than not proximately due to or the result of the Veteran’s service-connected condition. The examiner explained that the Veteran reported that his hypertension was diagnosed around 2000 when he went to a doctor and after he had gained a lot of weight. The examiner noted that hypertension was diagnosed concurrently with diabetes mellitus, and the Veteran’s cardiologists have not stated that his hypertension is due to his diabetes. The examiner also noted that the Veteran weighed 280 pounds in 2000 with a BMI of 44, which he classified as morbid obesity; he noted that risk factors for essential hypertension included age, obesity, family history, race, reduced nephron number, high sodium diet, excessive alcohol consumption, and physical inactivity. The examiner concluded that Veteran’s hypertension is less likely than not due to or the result of the Veteran’s diabetes mellitus and more likely due to his extreme obesity conditions and other factors. The examiner's opinion is probative, because it is based on an accurate medical history and provide an explanation containing clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examiner stated that the Veteran’s hypertension is less likely than not proximately due to or the result of his service-connected condition. The examiner noted that coronary artery disease does not cause systemic hypertension, and the Veteran’s hypertension predates his diagnosis of CAD. The examiner noted that the Veteran has internal carotid artery stenosis diagnosed in 2013 by carotid duplex ultrasound, also predated by Veteran's hypertension diagnosis. No other peripheral vascular disease is noted. The examiner further added that peripheral neuropathy does not cause systemic hypertension; moreover, peripheral neuropathy is not noted in Veteran's problem list and, if present and due to diabetes, diagnosed after hypertension and therefore not causative. The examiner's opinion is probative, because it is based on an accurate medical history and provide an explanation containing clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In an addendum to the January 2019 DBQ examination, dated in August 2019, an examiner opined that the Veteran’s hypertension has not been aggravated by the service-connected diabetes, coronary artery disease, peripheral vascular disease, or peripheral neuropathy. The examiner opined that the Veteran’s hypertension has not been aggravated by type II diabetes mellitus; he noted that the Veteran’s kidney function was normal. The examiner also noted that the Veteran has been taking 1 single pill for his hypertension since diagnosis and to current. The examiner also noted that the Veteran’s hypertension predates his diagnoses of CAD and peripheral vascular disease which was mentioned on examination in 2005. The examiner indicated that he was not able to find any "medical problems" in the Veteran’s medical records that includes this service-connected (SC) peripheral vascular disease, left and right lower extremity. The examiner noted that the Veteran had seen vascular surgery for vascular issue but never mentioned any "peripheral vascular disease, left & right lower extremity;" he stated that this would have been obvious for someone who is elderly, smoker, asymptomatic carotid stenosis, male, obese, CAD & DM. He noted that the Veteran has never undergone vascular surgery except for coronary artery stentings for his service-connected CAD. The examiner's opinion is probative, because it is based on an accurate medical history and provide an explanation containing clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As such, no medical professional has ever related the Veteran’s hypertension to his service-connected disabilities, including type II diabetes mellitus. In the absence of competent and probative evidence that the Veteran's hypertension was either caused by or aggravated by his service-connected type II diabetes mellitus, CAD, PVD, tinnitus or peripheral neuropathy, service connection is not warranted on a secondary basis and the claim must be denied. See 38 C.F.R. § 3.310. While the Veteran believes his hypertension is proximately due to his diabetes or other service-connected disabilities, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and an interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the July 2017, January 2019 and August 2019 DBQ/VA examinations. In summary, the weight of the evidence is against a finding that the Veteran's hypertension is etiologically related to a disease, injury, or event in service, to include exposure to herbicides therein, and is against a finding that it was caused or aggravated by any of his service-connected disabilities, including DM 2; consequently, the claim must be denied. The preponderance of the evidence is against all theories of the claim; therefore, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.