Citation Nr: 21002511 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 08-37 090 DATE: January 13, 2021 ORDER Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents, is denied. FINDING OF FACT The Veteran’s hypertension was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease, to include exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1967 to June 1971. The Veteran died in July 2016. The Appellant is the surviving spouse of the Veteran. The Board notes that the VA has conceded herbicide exposure in May 2016 and June 2020 memoranda. The Veteran’s claims were previously remanded by the Board in a July 2020 decision for further development and a new opinion. The Board finds that the RO has substantially complied with the July 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents The Appellant contends that the Veteran’s hypertension is due to herbicide agent exposure in the Republic Vietnam. Alternatively, the Appellant contends that the Veteran’s hypertension is secondary to his service-connected diabetes or other service-connected disabilities. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran had a current diagnosis of hypertension as evidenced by August 2004 and November 2016 VA examinations. Hypertension is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331 However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. VA treatment records show the Veteran was not diagnosed with hypertension until 1995, decades after his separation from service and decades outside of the applicable presumptive period. The Veteran has not alleged that he had hypertension prior to his diagnosis in the 1990s. Thus, there is no lay or medical evidence showing pertinent symptomology during the applicable period. Service connection for hypertension may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s hypertension and an in-service injury, event or disease, to include exposure to herbicide agents. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. In its prior remand, the Board observed that although VA has not conceded a relationship between hypertension and herbicides, it is significant to note that, prior to 2006, the National Academy of Sciences (NAS) placed hypertension in the “Inadequate or Insufficient Evidence” category. However, in its update in 2006, NAS elevated hypertension to the “Limited or Suggestive Evidence” category. Update 2012 provides the history of NAS changing the categorization of hypertension beginning in its 2006 Update and subsequent Updates. See 79 Fed. Reg. 20,308 (Apr. 11, 2014). Update 2012 notes that NAS has defined this category of limited or suggestive evidence to mean that the “evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence.” Id. at 20.309. Given the NAS update and the Veteran’s assertions, the Board remanded this matter for a VA examination with opinion. The September 2020 VA examiner opined that the Veteran’s hypertension was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness, including herbicide exposure. As rationale, the VA examiner noted that the Veteran did not have any diagnosis or treatment for hypertension until at least 25 years after service. The examiner further noted that the above mentioned NAS study did not include risk factors for hypertension. The VA examiner opined that the Veteran’s hypertension was more likely than not due to his co-morbid medical conditions including a history of obesity, smoking tobacco, and a history of alcohol use and hyperlipidemia. The VA examiner further opined that it was less likely than not that the Veteran’s hypertension was proximately due to or the result of the Veteran’s service-connected conditions including diabetes mellitus. As rationale, the examiner indicated that the Veteran’s diabetes mellitus and hypertension were diagnosed contemporaneously in 1999 and the deleterious effects of diabetes on circulation sufficient to cause hypertension and accrue over years. The examiner further noted the Veteran’s diabetes mellitus did not aggravate his hypertension as the Veteran’s lab results over the course of treatment did not reveal any renal effects consistent with aggravation due to diabetes and instead showed the Veteran’s hypertension was moderately well controlled with medication. As such, the VA examiner opined there was no medical nexus connecting the Veteran’s hypertension to his military service. Similarly, an August 2004 VA examiner opined that the Veteran’s hypertension was less likely as not caused by diabetes. The VA examiner noted that the Veteran smoked a pack of cigarettes every other day. Later, the November 2016 VA examiner opined that the Veteran’s hypertension had been aggravated by his diabetes mellitus. The Board gives more probative weight to competent medical evidence, which establishes that these symptoms were instead attributable to the Veteran’s other risk factors including significant history of smoking and obesity. The September 2020 VA examiner determined that the Veteran’s hypertension was due to his other risk factors, as discussed above. Service connection for hypertension may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s hypertension and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. While the Veteran believed his hypertension was related to an in-service injury, event, or disease, including herbicide exposure, he was not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education and knowledge of the interaction between multiple body symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In conclusion, based on the analysis above, a preponderance of the evidence is against the Veteran’s claim for service connection for hypertension. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107 (b). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. Taylor, 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.