Citation Nr: 21003508 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 12-17 854 DATE: January 21, 2021 ORDER Entitlement to service connection for a cardiovascular disability, to include hypertension, is denied. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicide agents, to include Agent Orange. 2. 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. 3. The preponderance of the evidence of record is against finding that the Veteran has had a cardiovascular condition at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for a cardiovascular disability, to include 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 FINDINGS AND CONCLUSION The Veteran had active service from March 1970 to December 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the appeal for further development in November 2019 and September 2020. The most recent remand directives have been substantially completed with. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 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). In addition, service connection may be established on a presumptive basis for certain diseases resulting from exposure to herbicide agents, such as Agent Orange, if a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, absent affirmative evidence to establish that the Veteran was not exposed to such herbicide agent during that service. See 38 C.F.R. §§ 3.307 (a)(6)(iii). If a Veteran is presumably exposed to an herbicide agent, then there is a presumption of service connection for certain enumerated diseases. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a) and 3.309(e). Ischemic heart disease is one of the diseases for which service connection will be presumed based on herbicide agent exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6); 3.309(e). Hypertension is not included in such enumerated diseases. If a veteran is found to have been exposed to an herbicide agent, to include Agent Orange, but his diagnosed disease is not eligible for presumptive service connection, the effects of the herbicide exposure must still be considered on a direct basis. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). 1. Entitlement to service connection for a cardiovascular disability, to include hypertension The Veteran contends he has a cardiovascular disability, to include hypertension, which is related to his presumed herbicide agent exposure. At the outset, the Board notes that the Veteran has verified service in the Republic of Vietnam. As such, he is presumed to have been exposed to herbicide agents, including Agent Orange during service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Service treatment records are absent for treatment or diagnosis of a chronic cardiovascular condition or hypertension. A diagnosis of a chronic cardiovascular condition or hypertension was not shown to have manifested to a compensable degree within a year of service discharge. Post-service treatment records show the Veteran was admitted to the emergency room in February 2011 for acute respiratory failure. Treatment providers assessed acute respiratory failure secondary to pulmonary edema, most probably secondary to malignant hypertension. The Veteran underwent VA examinations in December 2017, July 2019, and March 2020. The Board previously found these VA examinations inadequate. The December 2017 and July 2019 VA examination reports showed mild concentric left ventricular hypertrophy was identified by electrocardiogram, but did not adequately address whether this was a cardiovascular disability. The December 2017 VA examiner also did not provide an opinion on whether hypertension is at least as likely as not due to an in-service injury or disease, to include exposure to herbicide agents. The July 2019 and March 2020 VA examination reports did not include adequate rationale addressing direct service connection with respect to hypertension. The March 2020 VA examiner opined that the Veteran does not have left ventricular hypertrophy but did not indicate whether the Veteran has a currently diagnosed cardiovascular disability or has ever been diagnosed with a heart condition. As a result, the Board will disregard these opinions in its adjudication. The Board remanded the appeal for another opinion in September 2020 and in October 2020, a VA examiner reviewed the claims file and issued an addendum opinion. The examiner opined that the Veteran does not have a diagnosed chronic cardiovascular disability condition. The examiner explained that the Veteran has a diagnosis of hypertension, but there was no evidence of myocardial infarction, coronary artery disease, ischemic heart disease, arrhythmia, or other chronic congestive heart failure in the claims folder. The examiner explained that the hypertrophy was not symptomatic, and that the most recent echocardiogram revealed normal findings. The examiner also opined that the Veteran did not have a diagnosed heart disability more generally. She explained that there was no evidence of myocardial infarction, coronary artery disease, ischemic heart disease, arrhythmia, or other chronic congestive heart failure in the claims folder. The examiner further opined that the current hypertension is less likely than not incurred or caused by the Veteran’s in-service exposure to Agent Orange. The examiner explained that recent studies have shown an association with hypertension and veterans assigned to the Chemical Corps who had a high exposure to herbicides, but that there was no association with veterans with other military occupational specialties. She noted that due to environmental dissipation and photochemical degradation of the residual Agent Orange suggested that dioxin concentrations in ground troops who served in Vietnam would have been small even if they had been in recently treated areas. She also noted that a medical study revealed that 90 percent of people 55 and over will develop hypertension, and that all Vietnam era veterans thus have a 90 percent chance of developing hypertension whether they were exposed to Agent Orange or not. Thus, she concluded that while the Veteran has a confirmed diagnosis of hypertension, it is less likely as not due to service or Agent Orange exposure. For the reasons that follow, the Board finds that service connection for a cardiovascular disability, to include hypertension, is not warranted. The competent and probative medical evidence establishes that while the Veteran has a current diagnosis of hypertension; he does not have any other cardiovascular disability. The March 2020 VA opinion in this regard is competent and probative because it was provided by a medical professional and was based on review of the Veteran’s medical history and clinical presentation, and was supported with an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, regarding ventricular hypertrophy, the competent evidence of record also fails to show that this condition is a current, diagnosed heart disability. While the Veteran believes he has a current cardiovascular disability, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. 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 opinion. As the competent evidence of record fails to show that the Veteran has a cardiovascular disability, there is no basis upon which to award service connection for such. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). With respect to the current diagnosis of hypertension, the Veteran is presumed to have been exposed to herbicide agents during his service in Vietnam. However, he cannot establish entitlement to service connection for his hypertension on a presumptive basis under 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.309 (e), because hypertension is not one of the enumerated diseases. Further, hypertension was not diagnosed in service or within a year of discharge. As there is no evidence showing initial manifestations of hypertension in service, or to any degree within one year of separation from service, the one-year presumption under 38 C.F.R. §§ 3.307 and 3.309 is not an avenue for service connection, nor are the provisions of 38 C.F.R. § 3.303 (b) pertaining to chronicity or continuity of symptomatology. See 38 C.F.R. §§ 3.303 (b), 3.307, 3.309. The fact that the Veteran cannot establish entitlement to service connection for his hypertension on a presumptive basis does not preclude him from establishing entitlement on a direct incurrence or other basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In support of his claim, he submitted medical articles suggesting an association between Agent Orange exposure and hypertension. However, the competent and most persuasive evidence shows the Veteran’s hypertension is not related to service or to a service-connected disability. The October 2020 VA examiner opined that the Veteran’s hypertension is not at least as likely as not related to an in-service injury, event, or disease, including Agent Orange exposure. The examiner explained that recent studies showing an association between Agent Orange and hypertension were limited to veterans assigned to the Chemical Corps. However, she indicated that there was no association with veterans with other military occupational specialties. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examiner’s medical opinion and interpretation of this medical treatise evidence as applied to the Veteran’s specific case outweighs the lay opinion of the Veteran and reliance upon the same treatise evidence. Accordingly, this treatise evidence is not sufficient to establish causal nexus in this case. The Veteran believes his hypertension is related to an in-service injury, event, or disease but he is not competent to provide a nexus opinion regarding this issue. The issue is complex, as it involves internal disease processes and requires medical training and expertise to diagnose. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). In sum, the competent and most probative evidence of record fails to indicate that the Veteran’s hypertension had onset in, or is otherwise related to service. Therefore, service connection for hypertension is not warranted. As the preponderance of the evidence is against the claim for a cardiovascular disability, to include hypertension, any applicable theory of service connection, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 53-56. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Lauritzen, 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.