Citation Nr: 20043782 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 07-37 410 DATE: June 29, 2020 ORDER Service connection for hypertension is denied. FINDINGS OF FACT 1. The Veteran participated in Operation Upshot-Knothole, a radiation-risk activity, and therefore qualified as a “radiation-exposed veteran.” 2. The Veteran was diagnosed with hypertension in the 1980’s. 3. The Veteran’s hypertension was not linked to disease or injury incurred or aggravated in active service, including ionizing radiation exposure, did not manifest within a year of service separation, and was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 C.F.R. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1953 to August 1953. The appellant is his surviving spouse and has been substituted as the claimant. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the matter for further development in December 2009. The Board held a hearing in this matter in October 2009. The Veterans Law Judge (VLJ) who conducted that hearing is no longer at the Board. An April 2020 letter notified the appellant of that fact and of her right to request another Board hearing. It also presented her options for selecting or declining another hearing. The letter informed her that she had 30 days to respond, and that if the Board did not receive a response within 30 days of the letter, it would assume she did not want another hearing and would proceed accordingly. As more than 30 days have passed since the mailing of the April 2020 letter with no response from the appellant, the Board will proceed with appellate review. Service Connection Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link between the in-service disease or injury and the current disability (the “nexus” element). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including hypertension as a cardiovascular-renal disease, service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). For conditions noted during service (or in a presumptive period) but not shown to be chronic at the time, a continuity of symptomatology after service is required to establish service connection. Id. When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service (“intercurrent” causes). 38 C.F.R. § 3.303(b). In addition, where a veteran served continuously for 90 days or more during a period of war, or after December 31, 1946, there is a presumption of service connection for cardiovascular-renal disease, including hypertension, if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted).   Hypertension The Veteran claimed service connection for hypertension as due to in-service ionizing radiation exposure. For the following reasons, the Board finds that service connection is not established. Service connection for a condition claimed to be caused by exposure to ionizing radiation during service may be established in one of three ways. Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, service connection may be established on a presumptive basis for certain diseases manifesting in a radiation-exposed veteran, unless the presumption is rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1112(c); 38 C.F.R. §§ 3.307(d), 3.309(d)(2)(i), (d)(3)(i). Second, if a veteran develops a “radiogenic disease,” which is defined as a disease that may be induced by ionizing radiation, and it is claimed that the disease was caused by exposure to ionizing radiation in service, specific development procedures will be followed by VA to determine whether service connection may be established. 38 C.F.R. § 3.311. Finally, service connection may be established by the “difficult burden” of producing competent and probative evidence that the claimed condition was actually caused by exposure to ionizing radiation during active service. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Here, service connection for hypertension may not be established on a presumptive basis. In its December 2009 decision, the Board found that the Veteran participated in Operation Upshot-Knothole, in which he witnessed the detonation of an atomic bomb at close range. He thus qualified as a “radiation-exposed veteran” based on his involvement in this “radiation-risk activity.” See 38 C.F.R. § 3.309(d)(3)(ii). Because hypertension is not included in the list of diseases for which a presumption of service connection is available for radiation-exposed veterans, service connection may not be awarded on a presumptive basis. See 38 C.F.R. § 3.309(d)(2)(i). Service connection also is not established for hypertension via the second avenue for establishing claims for radiation exposure, as hypertension is not defined by VA as a radiogenic disease; such diseases are listed in 38 C.F.R. § 3.311(b)(2)(i). A claimed condition not listed among the radiogenic diseases under 38 C.F.R. § 3.311(b)(2)(i) may still be found to be a radiogenic disease if the claimant cites or submits competent scientific or medical evidence that the claimed condition is a radiogenic disease. 38 C.F.R. § 3.311(b)(4). Here, there is has been no citation to or submission of competent scientific or medical evidence that hypertension is a radiogenic disease. In a March 2005 VA treatment record, a physician assistant stated that a number of the Veteran’s health conditions, including hypertension, were “more likely than not due to” his radiation exposure. The physician assistant went on to state that “I feel that radiation can trigger the onset of the [listed health conditions] and could cause them, and also noted that the Veteran did not have a family history of these medical problems which would suggest genetic predisposition to them. The Board finds that the March 2005 statement by the physician assistant that she “feel[s]” that the Veteran’s radiation exposure could cause his various medical conditions, including hypertension, does not constitute competent scientific or medical evidence that hypertension is a radiogenic disease. It merely reflects an unsupported assumption that in the absence of a family history of hypertension (assuming that to be true), the Veteran’s hypertension was caused by radiation exposure. The physician assistant cites no authority for this proposition and does not provide any explanation as to why hypertension would be “more likely than not” due to radiation exposure merely because the Veteran did not have a genetic predisposition to it. There is also no indication that a physician assistant would have sufficient medical expertise to provide a competent opinion on this issue, at least without citation or reference to medical or scientific sources such as a medical article or scientific study that might support such a conclusion. By contrast, in a September 2011 VA medical opinion by a licensed medical doctor, the physician opined that the Veteran’s hypertension was less likely than not related to radiation exposure. The physician explained that the onset of his hypertension in middle age was a typical pattern for such onset, regardless of other conditions, and that there is no medical literature supporting a connection between radiation exposure and the onset of essential hypertension. This opinion is supported by a complete explanation, and is rendered by a medical professional with much greater medical expertise than the March 2005 physician assistant. It not only outweighs, but essentially negates the March 2005 opinion. Finally, to the extent the Veteran’s claim may also be considered the expression of his own opinion that his hypertension was caused by radiation exposure, the Board finds such opinion is not competent evidence. Specifically, the record does not show that he had a medical or scientific background or expertise. Therefore, he is considered a lay person in the fields of medicine and science. Lay testimony is competent as to matters capable of lay observation or within a person’s first-hand experience, and may be competent evidence with respect to both the diagnosis of a medical condition and its etiology or cause. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, lay testimony is not competent with respect to determinations that cannot be made based on lay observation alone due to their medical or scientific complexity. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board must determine on a case by case basis whether lay testimony is competent on the matter at issue, or whether medical evidence is required. See Davidson, 581 F.3d at 1316). In this case, the Board finds that whether the Veteran’s hypertension may be induced by ionizing radiation is a medical or scientific determination requiring relevant expertise, as such a relationship cannot be observed through the senses alone. Thus, the Board finds that the Veteran’s unsupported lay opinion is not competent evidence on this issue, and consequently is not probative. See Layno v. Brown, 6 Vet. App. 465, 470-71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). In sum, as there is no competent medical or scientific evidence that the Veteran’s hypertension may be related to ionizing radiation exposure, a radiogenic disease is not established. 38 C.F.R. § 3.311(b)(4). Because a radiogenic disease is not established, the development applicable to such diseases under 38 C.F.R. § 3.311 does not apply, and service connection cannot be established on this basis. Finally, with respect to the third avenue for establishing service connection for a condition claimed as caused by ionizing radiation exposure, the preponderance of the evidence otherwise weighs against a relationship between the Veteran’s hypertension and his in-service ionizing radiation exposure. See Combee, 34 F.3d at 1042. As discussed above, there is no competent or probative evidence of record supporting such a relationship. The March 2005 VA physician assistant’s opinion is not probative, as it does not explain why the Veteran’s hypertension would be related to ionizing radiation exposure merely because there was no family history of hypertension (assuming that to be true). See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (holding that the probative value of a medical opinion comes from its reasoning). Moreover, it does not account for the fact that the onset of the Veteran’s essential hypertension in middle age represented a typical pattern, as found by the September 2011 VA examiner. It also does not account for the fact that medical literature does not support a relationship between ionizing radiation exposure and hypertension, as stated by the September 2011 VA examiner. The September 2011 VA medical opinion by a licensed medical doctor is probative, as it is supported by a complete explanation. Moreover, the medical doctor possesses much greater expertise than the physician assistant. Accordingly, the September 2011 VA medical opinion outweighs the March 2005 opinion by the physician assistant. As explained above, competent evidence supporting a relationship between hypertension and radiation exposure, including via lay statements, has not otherwise been submitted. In sum, the criteria for establishing service connection for hypertension based on in-service ionizing radiation exposure are not satisfied. The evidence shows that the Veteran’s hypertension did not manifest in service or within a year of service separation. According to the September 2011 VA examination report, the Veteran reported that his hypertension was first diagnosed in the 1980’s, which is many years after service separation. The evidence does not otherwise indicate that the Veteran’s hypertension was noted in service or within a year of separation. Accordingly, service connection is not established based on chronicity or continuity of symptomatology, or for hypertension that manifests to a compensable degree within a year of separation. See 38 C.F.R. §§ 3.303(b), 3.3.307, 3.309(a). As the evidence does not otherwise show service incurrence or aggravation of a disease or injury related to hypertension, the criteria for service connection for hypertension on a direct basis are not satisfied. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a). Service connection for hypertension is also not established on a secondary basis. In this regard, service connection may be granted on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be granted for aggravation of a disease or injury by a service-connected disability. Id. In the September 2011 VA medical opinion, the examiner concluded that there is a lack of correlation between hypertension and pernicious anemia, hypothyroidism, and polymyositis. The examiner also noted that the Veteran’s hypertension occurred at about the same time as his diabetes. The examiner explained for hypertension to be caused by diabetes, the typical scenario is that a person has diabetes for many years, often with renal disease, and then develops hypertension. There is no competent lay or medical evidence of record supporting a relationship between the Veteran’s hypertension and his service-connected disabilities, either by way of causation or aggravation. (Continued on next page)   Accordingly, the criteria for service connection for hypertension on a secondary basis are not satisfied. See 38 C.F.R. § 3.310. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rutkin, 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.