Citation Nr: 20052299 Decision Date: 08/06/20 Archive Date: 08/06/20 DOCKET NO. 14-02 747 DATE: August 6, 2020 ORDER Entitlement to service connection for hypertension is denied. FINDING OF FACT Hypertension was not manifested during service or within one year of service, and the preponderance of the evidence is against a finding that the Veteran’s hypertension is related to an event, injury, or disease in service, to include as due to presumed herbicide exposure in service, or to service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for hypertension have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1963 to July 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied entitlement to service connection for hypertension. The Veteran timely perfected an appeal. See February 2011 Notice of Disagreement; November 2013 Statement of the Case January 2014 VA Form 9. In May 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been prepared and associated with the claims file. In November 2017, the Board issued a decision denying entitlement to service connection for hypertension. The Veteran appealed the Board’s November 2017 decision to the United States Court of Appeals for Veterans Claims (Court), which, by Order dated in December 2018, granted a December 2018 Joint Motion for Remand (JMR) and remanded the Board’s November 2017 decision for actions consistent with the JMR. In June 2019, the Board remanded the issue of entitlement to service connection for hypertension for further development. Service Connection The Veteran seeks entitlement to service connection for hypertension which he contends is secondary to service-connected diabetes. See February 2011 Statement in Support of Claim; May 2017 Hearing Transcript. He also contends that hypertension is related to exposure to herbicides during his active service. See May 2017 Hearing Transcript. A. Legal Criteria Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d). If a veteran was exposed to an herbicide agent during active military service, certain diseases will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Even if a Veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider the claim on a direct service-connection basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, to include hypertension, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. In order to prevail on the theory of secondary service connection, there must be evidence of a current disability; evidence of a service-connected disability; and evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Lay evidence is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature.” Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, 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. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. B. Factual Background The Veteran’s service treatment records show no complaints of or treatment for either hypertension during active service. During a March 1966 flying examination, the Veteran’s blood pressure was 106/80. During a February 1967 flying examination, the Veteran’s blood pressure was 134/78. A January 2007 VA new patient treatment record shows that the Veteran reported a family history of coronary artery disease and hypertension. He also reported a primary medical history of sleep apnea. A June 2008 VA treatment record shows that the Veteran reported increasing fatigue, which he attributed to weight gain and a lack of exercise. The Veteran was afforded a VA hypertension examination in March 2012. He reported being diagnosed with hypertension in 1998 or 1999. He also denied “a lot of difficulty in controlling his blood pressure,” and he denied any complications related to his blood pressure. In a March 2012 VA diabetes examination report, a VA examiner noted that the Veteran had no nephropathy or renal dysfunction caused by diabetes. A May 2014 VA treatment record shows that the Veteran’s body mass index was considered obese. See also June 2019 VA Treatment Record (noting that the Veteran was obese). During the May 2017 Board hearing, the Veteran testified that he did not have hypertension in service. He also testified that his doctors told him that his hypertension was related to herbicide exposure but were “unwilling to sign their name to it.” In October 2019, a VA examiner reviewed the claims file and opined that the Veteran’s hypertension was not caused or aggravated by the Veteran’s service-connected diabetes. The examiner noted that the Veteran met the diagnostic criteria for type II diabetes in June 2008 and that he reported being diagnosed with hypertension since the late-1990s. The examiner opined that “diabetes clearly did cause” the Veteran’s hypertension because hypertension “pre-existed the diabetes by approximately 10 years.” The examiner also opined that the Veteran’s hypertension was not aggravated by the Veteran’s service-connected diabetes. The examiner indicated that based on VA medical records prior to the development of diabetes, the baseline severity of the Veteran’s hypertension was hypertension that required dual therapy for control. The examiner also acknowledged that the current severity of the Veteran’s hypertension was greater than the baseline severity. However, the examiner opined that the Veteran’s hypertension was not aggravated by its natural progression by the service-connected diabetes. The examiner indicated that there is no evidence that the Veteran developed medication resistant hypertension since his diabetes diagnosis. The examiner also noted that there was no evidence of diabetic nephropathy. The examiner explained that “[t]he way diabetes affects BP or contributes to HTN is through diabetic nephropathy affecting the renin-angiotensin-aldosterone system.” The examiner also indicated that although the Veteran “has required increased medication for hypertension since he first presented to the VAMC this is unfortunately the natural progression of the disease” because “[w]ith aging HTN becomes more difficult to control.” The examiner also opined that after “careful review and consideration” of the Veteran’s hypertension risk factors, the Veteran’s hypertension was less likely as not related to his presumed in-service exposure to herbicide agents. The examiner acknowledged that the National Academies of Science (NAS) elevated hypertension to “sufficient evidence of an association” when compared to its 2014 Update. However, the examiner also indicated that ‘‘‘[s]ufficient evidence of an association’ does not automatically equate to causation.” The examiner also noted that the NAS study was based on self-reports of hypertension and that there was no way to know if the subjects truly had hypertension or may have been on a hypertension medication being used for another purpose, such as for migraines, BPH, nightmares, or renal conditions. The examiner further indicated that the Veteran had primary (essential) hypertension, which has no known cause. However, the examiner noted that “there are several well documented risk factors” for essential hypertension. The examiner indicated that the Veteran’s “definite risk factors” for the development of essential hypertension include family history, age, sleep apnea, and obesity. Thus, the examiner noted that although the most recent NAS update states that there is sufficient evidence of an association between herbicides and hypertension, “this must be considered in context with the [V]eteran’s other risk factors.” The examiner further indicated that the “[V]eteran’s family history, age, sleep apnea, and obesity are definitive, well documented risk factors” and that the “family history itself conveys a 2-fold increase in the development” of hypertension. The examiner cited to several studies in support of her opinion. C. Analysis As discussed in detail in the Board’s June 2019 decision granting entitlement to service connection for diabetes mellitus, the evidence in this case supports a presumption of exposure to herbicides while serving in Thailand during the Vietnam era. However, hypertension is not listed as one of the disabilities for which presumptive service connection based on herbicide exposure can be granted under 38 C.F.R. § 3.307 (a)(6) and 38 C.F.R. § 3.309 (e). Thus, service connection may not be granted on a presumptive basis based on herbicide exposure. Notwithstanding the foregoing, the fact that the Veteran is not entitled to the presumption of service connection based on herbicide exposure does not preclude an evaluation as to whether he is entitled to service connection on a direct basis or entitled to presumptive service connection for a chronic disease. 38 U.S.C. § 1113 (b); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). As noted above, hypertension is included in the list of chronic diseases under 38 C.F.R. § 3.309 (a). However, service treatment records are silent for a diagnosis of, or treatment for, hypertension, and the Veteran’s blood pressure was normal during annual flying examinations. Thus, there is no evidence that hypertension manifested during active service. The Veteran reported that he was first diagnosed with hypertension in 1998 or 1999. None of the post-service clinical records mention a history of onset in service or shortly after service. The Veteran does contend that hypertension first manifested during service or within one year of discharge from service. In fact, during the May 2017 Board hearing, the Veteran specifically denied treatment for or a diagnosis of high blood pressure in service. Based on the foregoing, the Board finds that service connection cannot be granted based on chronicity or continuity of symptomatology as hypertension did not manifest during service or within one year of separation from service. 38 C.F.R. § 3.309 (a). The Veteran is therefore not entitled to invoke these presumptions, but his claim is still considered under traditional service connection principles. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). As an initial matter, the Board notes that the Veteran has been diagnosed with hypertension. As such, the Board finds the current disability element is established. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, the Veteran’s herbicide exposure is presumed. Thus, there is evidence of an event, injury, or disease in service. Accordingly, the issue turns upon whether there is evidence of a nexus between the in-service event and the present disability. Id. The Board concludes that the evidence of record is against a finding that the Veteran’s hypertension is related to any injury, event, or illness in service, to include his presumed herbicide exposure. As noted, service treatment records are negative for any treatment or diagnosis of a hypertension. The Veteran’s hypertension was diagnosed in 1998, 30 years after his separation from service. The Veteran does not assert, and the evidence does not show, that his hypertension began prior to 1998; nor does the Veteran contend that any aspect of service other than exposure to herbicides was applicable in his case. The Veteran’s sole contention is that hypertension is due to exposure to herbicide agents in service, to include Agent Orange. The Board finds the October 2019 opinion to be highly persuasive to the issue at hand. The Board notes that the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, his knowledge and skill in analyzing the data, and his medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the October 2019 VA examiner’s conclusions are shown to have been based upon a review of the Veteran’s claims file, and the opinion is accompanied by a sufficient explanation and reference to pertinent evidence of record. Additionally, the opinion did not merely rest on the fact that hypertension is not presumptively linked to Agent Orange exposure. Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009). In this regard, the examiner reviewed the literature and discussed the Veteran’s other risk factors for hypertension. Moreover, the examiner specifically acknowledged the 2018 NAS Update but nonetheless explained why the Veteran’s other risk factors for hypertension were much more likely to be the cause of his hypertension than herbicide exposure. Because the examiner had an accurate history, medical expertise and training, and provided a sound rationale for the medical opinion, the October 2019 medical opinion is of significant probative value and weighs against a finding that hypertension is due to herbicide exposure. The Board acknowledges the Veteran’s contention that his doctors told him that his hypertension was related to herbicide exposure. The Veteran is certainly competent to report about what doctors may have told him because such a report of a contemporaneous diagnosis would be within his personal knowledge, and there is no reason to find him incredible in this regard. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). However, to the extent the Veteran proffers this information as a positive nexus between his current hypertension and service, even if accurate, the Board cannot determine the factual premise and reasoning underpinning such opinions. See Nieves-Rodriguez, 22 Vet. App. at 304. Further, the lack of corroborating medical evidence significantly reduces the probative value of these assertions. Accordingly, these statements have very little probative value, and they are far outweighed by the October 2019 VA examiner’s opinion discussed above. The Board has also considered the Veteran’s statements attributing his hypertension to service, but the relationship between hypertension and service is a complex medical question that is beyond the scope of personal observation. The evidence of record does not demonstrate that the Veteran has the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Therefore, the Veteran is not competent to provide an opinion on the etiology of his hypertension. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). Based on the foregoing, the Board finds that service connection on a direct or presumptive basis for chronic disease is not warranted for hypertension because the disease first manifested over 30 years after active service and was not caused or aggravated by any aspect of service. The Veteran has also raised the issues of entitlement to service connection for hypertension as secondary to his service-connected diabetes. After reviewing the foregoing evidence, the Board finds that service connection is not warranted on a secondary basis. The Board finds the October 2019 VA opinion to be highly persuasive to the issue of whether diabetes caused or aggravated the Veteran’s hypertension. The examiner found that it was less likely than not that the Veteran’s hypertension was caused by his service-connected diabetes because the Veteran’s hypertension was diagnosed almost 10 years prior to his diabetes and because the Veteran has normal renal function. The examiner also opined that the Veteran’s hypertension was not aggravated by his service-connected diabetes because, although his hypertension had increased in severity throughout the years, this was a natural progression in that hypertension becomes more difficult to control with aging. In so finding, the October 2019 VA examiner explained that in the absence of abnormal renal function or medication resistant hypertension, there was no aggravation because “[t]he way diabetes affects BP or contributes to HTN is through diabetic nephropathy affecting the renin-angiotensin-aldosterone system.” The Board places great probative weight on the VA opinion in this case, as it is consistent with the evidence of record and based upon medical knowledge and skill, as well as a review and analysis of the Veteran’s specific disability picture. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (a medical report must be read as a whole in the context of the claim and, even an opinion lacking in detail may be provided some probative value based upon the amount of information and analysis contained therein); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). There are no contrary medical opinions of record. The Board has also considered the Veteran’s statements that his hypertension is secondary to his diabetes. However, the Board accords his statements little probative value because, as noted above, he is not competent to opine on such a complex medical question. In this regard, the question of causation and aggravation of hypertension involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In a case such as this, where the diseases have multiple potential etiologies, expert testimony is necessary to establish causation. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. See Jandreau, supra; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, based on the foregoing, the Board finds that service connection for hypertension is not warranted on a direct or secondary basis. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kipper, 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.