Citation Nr: 20043657 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 16-29 453 DATE: June 29, 2020 ORDER Service connection for hypertension is denied. FINDING OF FACT The Veteran’s hypertension did not have its onset in service, is not related to service, to include exposure to herbicide agents, or secondary to service-connected disability. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 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 April 1967 to April 1971. The case is on appeal from a November 2015 rating decision. In August 2016, the Veteran testified at a Board hearing. While the case was in remand status following the Board’s November 2016 remand, unfortunately the Veteran passed away. The appellant is his surviving spouse, and, in February 2018, she was substituted to continue the appeal. The claim was last before the Board in September 2019. At that time, the Board implemented the Board’s November 2016 grant of service connection for diabetic peripheral neuropathy, granted service connection for stomach cancer and a disorder manifested by esophageal spasms, as secondary to service-connected stomach cancer. The Board also remanded the claim of service connection for hypertension, to include as secondary to service-connected diabetes mellitus type II and/or due to herbicide exposure, for further development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service connection for hypertension. Legal Criteria 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; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Presumptive service connection may be established for certain chronic diseases, where a veteran had ninety days or more of active service and the disorder manifested to a degree of 10 percent or more within one year from separation of service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). Moreover, where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service . In this case, cardiovascular disease including hypertension is included among the “chronic diseases” under 38 C.F.R. § 3.309 (a). If a veteran meets the requirements for a presumption of herbicide exposure under 38 C.F.R. § 3.307, several diseases are presumed to be related to herbicide exposure. 38 C.F.R. § 3.309(e). VA regulations provide that if a veteran was exposed to herbicides during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.309 (e). A veteran who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to herbicides. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. In addition, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5109(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The appellant is seeking service connection for hypertension. She contends that the Veteran’s hypertension was caused by or aggravated by his service-connected type 2 diabetes. Presumptive Theories As an initial matter, the Board will address whether presumptive service connection is warranted for the Veteran’s hypertension. Regarding exposure to Agent Orange, the Veteran served in Vietnam during the applicable period noted above. As such, the Veteran is presumed to have been exposed to herbicide agents during that time. However, the Board notes at this time hypertension is not a listed disease subject to presumptive service connection based on herbicide exposure under 38 C.F.R. § 3.309(e), and as such, service connection is not warranted on this basis. Presumptive service connection may also be established for certain chronic diseases under 38 C.F.R. § 3.303(b) or 3.309(a). The Veteran’s hypertension was not symptomatic or diagnosed in service or within one year from separation from service. The record shows the Veteran was diagnosed with hypertension in 2000, approximately 29 years after the Veteran’s separation from active duty. Further, the record does not contain evidence indicative of a manifestation during that earlier period of time or a continuity of any type of symptomology since service. Consequently, presumptive service connection under 38 C.F.R. § 3.303(b) or 3.309(a) is not warranted. Direct Theory Having established that presumptive service connection is not warranted, the Board’s analysis will now focus on “direct” service connection. That is, whether the post-service diagnosis of hypertension is nevertheless related to service, particularly the presumed exposure to herbicide agents, to include Agent Orange. See 38 C.F.R. § 3.303(d). Initially, the evidence of record establishes that the Veteran had a diagnosis of hypertension prior to his death. See December 2016 VA examination. As such, the central question is whether the Veteran’s hypertension had its onset in service or whether there is a causal nexus between the Veteran’s hypertension and exposure to herbicide agents. With regard to whether the Veteran’s hypertension had its onset in service, the evidence weighs against the claim similar to the one year presumptive period after service as discussed above. The December 2016 opinion of a VA examiner who concluded that the Veteran’s hypertension was less likely aggravated beyond natural progression due to service. The examiner determined that based on the available post-service medical records, the Veteran’s hypertension diagnosis was made decades after service and that his service treatment records (STRs) documented normal blood pressure readings, establishing there was no continuity of symptoms that began in service. The examiner noted that the Veteran was diagnosed specifically with essential hypertension. In this case, the Board finds the December 2016 opinion persuasive, as it relies expert knowledge, medical literature, and the Veteran’s medical history. In addition, there is no similar medical opinion of record weighing in favor of a nexus. Although the examiner’s phrasing used the word aggravation, it is clear from the context of the opinion that she was referring to a nexus. As such, service connection is not warranted for hypertension due to its in-service onset or relationship to service other than presumed herbicide exposure. With regard to whether there is a causal nexus between the Veteran’s hypertension and exposure to herbicide agents, the evidence weighs against the claim. On this issue, the evidence of record includes a December 2016 opinion from a VA examiner and a December 2019 opinion from Dr. D.A., M.D., a specialist in internal medicine at a VA Medical Center. Both concluded that it is less likely than not that the Veteran’s hypertension was caused by his exposure to herbicides during service in Thailand. In July 2019, Dr. D.A. provided an opinion regarding the relationship between the Veteran’s hypertension and presumed exposure to Agent Orange, pursuant to the Board’s September 2019 remand. The Board requested a medical opinion regarding the relationship between the Veteran’s hypertension and presumed exposure to Agent Orange in light of the NAS decision to move hypertension from the classification of the “limited or suggestive” category to the category of “sufficient” in Agent Orange: Update 11 (2018). Dr. D.A. opined it is less likely than not that the Veteran’s hypertension is etiologically related to his active service, specifically to include his presumed exposure to herbicides during service in Thailand during the Vietnam era. He further explained that hypertension is not a presumptive condition under the Agent Orange guidelines and there is no evidence in the medical literature to support any generally accepted cause and effect relationship between a history of herbicide exposure and the development of hypertension. In this case, the Board finds the December 2016 and the December 2019 opinions persuasive, as the rationale for the opinions is based upon accurate facts and sound reasoning, the opinions are consistent with the other evidence of record, and each other, including the more recent NAS Update. Moreover, the examiner did not merely find no link because hypertension is not on the presumptive list, but rather explained the lack of a relationship. In addition, there is no similar medical opinion of record weighing in favor of a nexus. As such, service connection is not warranted for hypertension based on a direct theory, including due to exposure to herbicide agents, to include Agent Orange. Secondary Theory The appellant also asserted that the Veteran’s hypertension was secondary to his service-connected type 2 diabetes. Concerning whether the Veteran’s hypertension was caused or aggravated by service-connected disability, the evidence weighs against the claim. The evidence of record includes a December 2016 VA examiner’s opinion. The examiner determined it is less likely than not that the Veteran’s hypertension was related to type 2 diabetes. Concerning causation, the examiner explained that the Veteran’s type 2 diabetes could not have caused the Veteran’s hypertension because the Veteran’s hypertension preexisted his type 2 diabetes. The examiner noted that the Veteran’s hypertension was diagnosed in approximately 2000, which was 6 years prior to his type 2 diabetes diagnosis. The examiner also found no relationship between hypertension and service-connected coronary artery disease. Additionally, the Veteran had essential hypertension, which means it has no identifiable cause. Concerning aggravation, the examiner determined it is less likely than not that the Veteran’s hypertension was aggravated beyond its natural progression by his service-connected type 2 diabetes. The examiner explained there is no objective evidence of microalbuminuria and his creatinine level was within normal limits. Additionally, renal dysfunction is the main mechanism by which diabetes can cause hypertension and the Veteran’s renal function was normal. Conclusion The Board acknowledges the appellant’s contentions regarding the onset and cause of the Veteran’s hypertension under these multiple theories. However, the appellant is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of hypertension, its history and causes, and the interaction between multiple organ systems in the body. Therefore, it is outside the competence of the appellant in this case because the record does not show that she has the skills or medical training to make such a determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA medical examiner’s opinions. The Board finds these opinions persuasive, as they rely on expert knowledge and the Veteran’s medical history. In reaching the conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, under the presumptive, direct and secondary theories of service connection, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is not warranted for hypertension. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Becton, Associate Counsel 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.