Citation Nr: 21000262 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 14-20 195 DATE: January 5, 2021 ORDER Entitlement to service connection for hypertension, to include as due to herbicide agent exposure and as secondary to service-connected diabetes mellitus type II, is denied. FINDING OF FACT The weight of the evidence reflects that hypertension did not manifest during service or within one year after separation from service, and that hypertension is not related to active service, including exposure to herbicide agents, or caused or aggravated by any service-connected disease or injury. CONCLUSIONS OF LAW The criteria for entitlement to service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1116, 1116A, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from August 1964 to August 1966. This matter initially came before the Board of Veterans Appeals (Board) on appeal from a June 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO, inter alia, granted service connection for diabetes mellitus type II and denied service connection for hypertension, to include as secondary to diabetes. In November 2019, the Veteran testified before the undersigned in a videoconference hearing. A transcript of the hearing is of record. In January 2020, the Board remanded the claim, finding the VA examiner’s opinion was inadequate. A new examination was ordered to determine the etiology of the Veteran’s hypertension disability and whether it more likely than not caused by exposure to herbicide agents in service or due to or aggravated by diabetes. A new VA examination was conducted in February 2020. For the reasons indicated in the discussion below, the examination was adequate and, therefore, complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). A Supplemental Statement of the Case (SSOC) was issued in September 2020, continuing the denial of service connection for hypertension, to include as due to herbicide exposure and as secondary to his service-connected diabetes mellitus type II. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). A veteran, who, during active military service, served in the Republic of Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Service “in the Republic of Vietnam” includes service both on the landmass of Vietnam and the waters that are no more than 12 miles offshore of Vietnam. 38 U.S.C. § 1116A (a). If a veteran was exposed to Agent Orange during active military, naval, or air service, certain diseases, are presumptively service connected. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. § 3.309 (e). Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases 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 (3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a). Hypertension is a chronic disease. If entitlement to service connection is not established on any of the presumptive bases noted above, a veteran is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. Entitlement to service connection for hypertension, including due to exposure to herbicide agents. For VA purposes, the term “hypertension” means that the diastolic blood pressure is predominantly 90 mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, Note (1) (2016). A diagnosis of hypertension requires two or more readings on at least three different days. Id. Multiple blood pressure readings to be taken over multiple days as specified in Note (1) of DC 7101 applies to confirming the existence of hypertension. Gill v. Shinseki, 26 Vet. App. 386, 391 (2013). Medical records, including a February 2020 VA examination, reflect that the Veteran has been diagnosed with hypertension. Because the Veteran served aboard the U.S.S. Salisbury Sound AV-13 in the official waters of the Republic of Vietnam during the Vietnam War, he is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116A; 38 C.F.R. § 3.307 (a)(6)(iii). Thus, current disability and in-service exposure to herbicide agents have been demonstrated. Service connection may be granted on a presumptive basis for the diseases listed in 38 U.S.C. § 1116(a)(2) and 38 C.F.R. § 3.309 (e). However, while the Veteran is presumed to have been exposed to an herbicide agent, hypertension is not among the diseases listed for which presumptive service connection is available based on in-service herbicide agent exposure. However, entitlement may be shown on an actual causation basis. The Veteran asserts there is a medical nexus between his current hypertension and his exposure to herbicide agents during his service in Vietnam. Pursuant to a January 2020 Board remand, a VA examination was conducted in February 2020 to determine the etiology of the Veteran’s hypertension and determine, in part, whether it was more likely than not caused by his exposure to herbicide agents or otherwise due to his time in service. The VA examiner reviewed the record, including the Veteran’s hearing testimony, and opined that his hypertension was less likely than not caused by his exposure to herbicide agents during service. He stated that there was no evidence in the Veteran’s service treatment records (STRs) of elevated blood pressure or the diagnosis or treatment of hypertension. He noted the Veteran had normal blood pressure upon entrance and separation from service and that there were no medical records from the years immediately after the Veteran’s discharge that would establish any chronicity of the claimed hypertension condition. In support of his conclusion, the examiner referenced the Veteran’s medical history, specifically noting that his hypertension was not diagnosed until 1996, over 30 years after his military service. He further stated there was no recognized medical literature or meta-analytical studies that supported a finding that hypertension is caused by Agent Orange, although he failed to provide an analysis of the National Academy of Science (NAS) article, “Veterans and Agent Orange: Update 11 (2018),” as instructed in the Board’s remand directive. In July 2020, a VA addendum opinion was issued. In that opinion, after reviewing the Veteran’s claim’s file, the VA physician also concluded that that it was less likely than not the Veteran’s hypertension is related to his exposure to herbicide agents. The physician stated that she agreed with the conclusions in the February 2020 opinion. Specifically, she noted that the Veteran had been diagnosed with primary hypertension, as opposed to secondary hypertension, which is generally caused by another medical condition. The physician also addressed the findings of a 2018 National Academy of Sciences (NAS) Institute of Medicine study, “Veterans and Agent Orange: Update 11 (2018).” The study found “sufficient evidence” of an association between hypertension and exposure to herbicide agents such as Agent Orange. The article upgraded hypertension’s previous classification in the category of “limited or suggestive” evidence of an association, to the category of “sufficient” evidence of an association. According to the NAS study, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. However, the VA examiner disagreed, finding that an opinion by the NAS is not a consensus by the medical community nor is it an acknowledgement by the VA of a causal relationship. Taken together, the two opinions addressed each theory of entitlement other than secondary (expressed below) and explained the reasons for their conclusions based on an accurate characterization of the evidence of record. The opinions are therefore entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no contrary medical opinion on these theories of entitlement. The Veteran’s written statements, as well his hearing testimony, assert that his current hypertension disability is caused by being exposed to Agent Orange while serving in Vietnam. Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. However, an opinion as to whether there is a link between the Veteran’s claimed hypertension and service, including due to exposure to herbicide agents, where there is no evidence of any hypertension for many years after service, is one requiring specialized knowledge and testing to understand the complex nature of the body systems. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007) (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). The Veteran has not indicated that he has such experience, thus, his opinion on the question of nexus is not competent evidence. There is no evidence of any complaints of, or treatment for, hypertension in the Veteran’s STRs. The Veteran has not reported, and the evidence does not otherwise reflect, that he has experienced a continuity of hypertension symptomatology or high blood pressure in or during the years since service. Neither the clinical record, medical opinions or the lay statements of record establish a continuity of symptomatology with respect to the claimed hypertension. There are two probative medical opinions against the claim and no medical opinions or competent lay statements in support. As there is no other evidence of a relationship between the Veteran’s hypertension and service, the preponderance of the evidence is against a finding that the Veteran’s claimed hypertension had its onset in service or within the first post-service year, or that it is otherwise related to service or due to exposure to herbicide agents. Therefore, the benefit-of-the-doubt doctrine is not for application, and service connection for hypertension is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Entitlement to service connection for hypertension as secondary to diabetes mellitus type II. The Veteran was granted service connection for diabetes mellitus type II, effective August 27, 2010, evaluated at 80 percent disabling. The Veteran asserts, alternatively, that his current hypertension disability was caused by his service-connected diabetes. Pursuant to a January 2020 Board remand, a VA examination was conducted in February 2020 to determine if the Veteran’s hypertension disability was due to, or aggravated by, his service-connected diabetes. In the VA examination report, the examiner found the Veteran’s current hypertension was less likely than not proximately due to or the result of the Vet’s service-connected diabetes mellitus type II. He also found that the Veteran’s hypertension was not aggravated beyond its natural progression by his diabetes. The examiner opined that the Veteran’s 2010 diagnosis of benign essential hypertension, suggests that his hypertension was not caused by his diabetes. Citing medical literature, the examiner stated that benign essential hypertension, unlike secondary hypertension, is hypertension that is generally not caused by other conditions in the body. The examiner indicated that essential hypertension is generally caused by factors like advanced age, increased body weight, or family history. As the examiner explained the reasons for his conclusion based on an accurate characterization of the evidence of record, the opinion is entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no contrary medical opinion on this theory of entitlement in the evidence of record. The Veteran’s statements that his current hypertension disability is due to or, alternatively, aggravated by his service-connected diabetes disability, are not competent because this testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship, that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau, 492 F.3d at 1377, n.4. The record currently contains a probative medical opinion against the Veteran’s claim for secondary service connection and the Veteran’s lay statement in support of the claim. There is no other evidence supporting a relationship between the Veteran’s hypertension and his service-connected diabetes mellitus type II. As the preponderance of the evidence is against a finding that the Veteran’s claimed hypertension is caused or aggravated by diabetes mellitus type II, the benefit-of-the-doubt doctrine is not for application, and service connection for hypertension, as secondary to his service-connected diabetes mellitus is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.K. Donaldson, 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.