Citation Nr: 20053497 Decision Date: 08/12/20 Archive Date: 08/12/20 DOCKET NO. 16-15 077A DATE: August 12, 2020 ORDER Service connection for hypertension, to include as due to herbicide agent exposure and service-connected coronary artery disease (CAD), is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s hypertension had its onset in service, is related to service including his exposure to herbicide agents therein, manifested to a compensable degree within one year of service separation, or was caused or aggravated by his service-connected CAD. CONCLUSION OF LAW The criteria for service connection for hypertension, to include as due to herbicide agent exposure and service-connected CAD, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.6, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1967 to May 1969. In December 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record. The record was held open for 30 days following the hearing to allow for the submission of additional evidence. During this period, the Veteran submitted two articles regarding the association of hypertension with herbicide agent exposure. In September 2019, the Board most recently remanded the current claim for additional development. 1. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure and service-connected CAD. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection, 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For purposes of establishing service connection for a disability resulting from exposure to herbicide agents, a veteran who had active service in the Republic of Vietnam during the Vietnam Era, beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. §§ 3.307(a), 3.309(e). Presumptive herbicide exposure requires a presence on the ground or in the inland waterways of the country; service on deep-water offshore vessels is insufficient to trigger the presumption. 38 C.F.R. § 3.307(a)(6)(iii); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009). The applicable criteria provide that a disease 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 this section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). VA has determined that there is no positive association between exposure to herbicide agents and any other condition for which it has not specifically been determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586 -57589 (1996). As hypertension is not listed among the diseases enumerated under 38 C.F.R. § § 3.309(e), the herbicide agents presumptive provisions of 38 C.F.R. § 3.307 do not apply as to that disability. Nevertheless, the United States Court of Appeals for the Federal Circuit has determined that a claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on exposure to herbicide agents is not precluded from establishing service connection for such disability as due to herbicide agent exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). With an approximate balance of positive and negative evidence on a relevant issue, VA resolves reasonable doubt in the claimant’s favor. 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). The Veteran seeks service connection for hypertension. Significantly, however, while there is evidence of a current diagnosis for hypertension, the evidence does not show that hypertension was incurred during active duty service and/or was otherwise related to active duty service. In that regard, the Veteran’s service treatment records (STRs) to include his service separation examination are silent for any complaints, findings, treatment or diagnosis related to hypertension. Post-service, private treatment records show that the earliest diagnosis for hypertension was in June 2002. See June 2002 Private Treatment records. Consequently, service connection for hypertension on the basis that such became manifest in service and persisted is not warranted. Notably, neither the Veteran nor his attorney has alleged (nor have they submitted competent evidence to show) that the Veteran has suffered from hypertension (or symptoms related thereto) inservice or continuously since service. See 38C.F.R. §3.303(b). Instead, he has specifically contended that his hypertension is the result of in-service exposure to herbicide agents, to include Agent Orange, and/or is associated with his service-connected CAD. As previously determined by the Agency of Original Jurisdiction (AOJ), the Veteran has confirmed service in the Republic of Vietnam and, therefore, exposure to herbicide agents is presumed. See March 2016 Statement of the Case. Although hypertension is not listed as a presumptive disability enumerated under 38 C.F.R. § 3.309(e), the Board must, nevertheless, analyze whether the evidence establishes direct service connection as due to herbicide agent exposure. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In June 2020, the AOJ procured a VA addendum opinion to address the questions of whether the Veteran’s hypertension was related to in-service herbicide agent exposure and/or caused or aggravated by service-connected CAD. The examiner opined that the Veteran’s hypertension was less likely than not related to active duty service, to include herbicide agent exposure therein and less likely than not caused or aggravated by CAD. The examiner explained that, while the medical literature submitted by the Veteran states that herbicide exposure history was significantly associated with hypertension and a cross-sectional study reexamined a subset of 5,609 Vietnam era veteran’s for an association with hypertension, an association does not establish causation and a study is not a conclusion of fact. The examiner explained further that he was unaware of any evidence based medical literature and/or any supporting evidence in the medical records that would provide evidence that Agent Orange exposure would have predisposed the development of hypertension or that CAD caused or aggravated hypertension. The examiner indicated that the article submitted by the Veteran titled “Herbicide Exposure, Vietnam Service, and Hypertension Risk in Army Chemical Corps Veterans” referenced a Centers for Disease Control and Prevention’s study of over 180,000 Korean Vietnam veterans, which found no relationship between hypertension mortality and Agent Orange exposure level. There was also no significant association between hypertensive disease reported to the Korean National Health Insurance claim database and Agent Orange exposure. The examiner specifically listed the risk factors for hypertension, which included weight, age, sex, race, family history, physical activity, diet, smoking, alcohol, and certain chronic disease, to include kidney disease, diabetes, and sleep apnea, but did not include herbicide agents and/or CAD. The Board finds that this addendum opinion is probative as it is based on a complete review of the Veteran’s claims file and provides adequate reasons and bases for the opinions rendered. There are no competent medical opinions to the contrary. The Board also emphasizes that the article titled “Herbicide Exposure, Vietnam Service, and Hypertension Risk in Army Chemical Corps Veterans” concluded specifically that there was an increased risk of hypertension among a cohort of the Army Chemical Corps Vietnam era veterans. Significantly, however, the Veteran has not asserted, and the record does not otherwise show that he served as a member of the Army Chemical Corps. Rather, his military occupational specialty (MOS) was listed as a light weapons infantryman (LT WPNS INF). Accordingly, as it does not appear that the above article applied to the Veteran, who was not a member of the cohort on which the article was based, the Board accords this article very little to no probative value. With regard to the article titled “ Hypertension Upgraded in Latest Biennial Review of Research on Health Problems in Veterans That May Be Linked to Agent Orange Exposure During Vietnam War,” the Board does not find this evidence probative of whether a nexus exists between the Veteran’s hypertension and his in-service herbicide agent exposure. The article highlights that the National Academies of Sciences, Engineering, and Medicine (NAS) in its most recent Agent Orange update moved hypertension from limited or suggestive of an association between hypertension and herbicide exposure to sufficient evidence of an association. Nevertheless, while the NAS has found some connection between herbicide exposure and hypertension, hypertension is not a presumptive condition at this time, which means that the medical evidence in each specific case must be reviewed, and medical opinions reached considering the totality of their health and medical circumstances. Here, as a result of a previous remand, a June 2020 VA medical opinion was been obtained, which found that it was less likely than not that the Veteran’s hypertension was the result of his presumed exposure to herbicides during his service in the Republic of Vietnam. As indicated above, the VA examiner considered the NAS finding that there may be an association between hypertension and herbicide agent exposure. However, the examiner explained that an association does not establish causation and there were other risk factors for hypertension to consider to include weight, age, sex, race, family history, physical activity, diet, smoking, alcohol, and certain chronic disease, to include kidney disease, diabetes, and sleep apnea. Likewise, the Board finds this article to be speculative as to whether a nexus exists between hypertension and herbicide agent exposure and it is outweighed by the more probative June 2020 VA examiner’s opinion. The Veteran’s own statements relating his hypertension to herbicide agent exposure and/or CAD are not competent evidence, as he is a layperson, and lacks the training to opine regarding medical causation in this matter. The questions of whether a disease/condition is related to herbicide agent exposure and/or CAD is a medically complex question and is not capable of resolution by lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for hypertension, to include as secondary to herbicide agent exposure and service-connected CAD. As such, this claim must be denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. E. Metzner, 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.