Citation Nr: 21004956 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-24 835 DATE: January 28, 2021 ORDER Entitlement to service connection for hypertension is granted. Entitlement to service connection for chronic kidney disease, as secondary to a service-connected disability, is granted. FINDINGS OF FACT 1. The evidence of record supports that the Veteran's hypertension has been etiologically related to his in-service herbicide exposure. 2. Giving the Veteran the benefit of the doubt, the Veteran’s service-connected hypertension more likely than not caused or aggravated the Veteran’s chronic kidney disease. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.309(e). 2. The criteria for entitlement to service connection on a secondary basis for chronic kidney disease have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from April 1968 to March 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit Michigan. The Board remanded these claims in March 2018 and February 2020 for further development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis and diseases of the nervous system, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013); Allen v. Brown, 7 Vet. App. 439, 448 (1995). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). More specifically, lay evidence may be considered competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377; Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Charles v. Principi, 16 Vet. App 370, 374 (2002). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for hypertension The Veteran and his representative assert that his hypertension is related to his in-service exposure to Agent Orange or his service-connected diabetes mellitus, type II. The record reflects a current diagnosis for hypertension, in VA examinations dated July 2012 and October 2019. The Veteran's in-service exposure to herbicides has also been conceded. VA laws and regulations provide that if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation, which, the Board notes, does not include hypertension. The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is currently warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). The record reflects that there was a negative nexus opinion in October 2019, as the VA examiner concluded that presumptive service connection is not supported since the onset of the hypertension was not until 2009. In February 2020, the Board remanded this claim to obtain an addendum opinion regarding the potential link between the Veteran’s hypertension and the Veteran’s active duty service, to include exposure to herbicide agents. Implicit in the Board’s actions is the conclusion that a delay of the onset of symptoms may not by itself be an adequate basis to deny the Veteran’s service connection claim. Pursuant to the Board remand, an addendum opinion was obtained in April 2020. The April 2020 VA examiner found that since there is no known cause in the medical records of the Veteran's hypertension, and that in 2018, the National Academies of Sciences, Engineering, and Medicine updated and placed hypertension in the category of sufficient, indicating that there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and herbicide exposure, the Veteran’s hypertension was at least as likely as not incurred in or caused by the Veteran’s herbicide exposure. As noted by the VA examiner, on November 15, 2018, the National Academies of Sciences, Engineering, and Medicine moved hypertension to the category of "sufficient" evidence of an association from its previous classification in the "limited or suggestive" category," indicating that there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and exposure to herbicides, including Agent Orange. The Board finds that this medical opinion is highly probative because it is based on a thorough review of the record, and contains details of the Veteran's history, and clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (2008). The Board also wishes to make it clear that it is not linking the Veteran’s hypertension to service on a presumptive basis; instead it is finding that the positive opinion of the April 2020 examiner, based on the Veteran’s conceded exposure to Agent Orange in service, the empirical data, and the lack of any other explanation for the onset of the Veteran’s hypertension, is sufficient to establish service connection. Based on the April 2020 examiner’s opinion, the Board finds that the Veteran’s hypertension has been sufficiently linked by this opinion to his conceded exposure to Agent Orange in service. As such, the Board finds that all elements of service connection for hypertension have been met and that service connection is therefore warranted for this disability. 2. Entitlement to service connection for chronic kidney disease The Veteran and his representative contend his chronic kidney disease is related to his in-service exposure to Agent Orange or his service-connected diabetes mellitus, type II. The first element for secondary service connection is satisfied in that the Veteran was diagnosed with chronic kidney disease, as noted in a VA examination from October 2019. While a July 2012 VA examination found there was no active diagnosis, there was a subsequent confirmed diagnosis. McClain v. Nicholson, 21 Vet. App. 319 (2007). The evidence relating to the final nexus element for secondary service connection is mixed. The Veteran was afforded two VA examinations in October 2019 and April 2020. The October 2019 VA examiner concluded that presumptive service connection is not supported since the onset of the hypertension was not until 2009. The examiner also concluded that the Veteran’s chronic kidney disease is less likely than not caused by or aggravated by his service-connected diabetes mellitus, type II. In February 2020, the Board remanded this claim to obtain an addendum opinion regarding the potential link between the Veteran’s chronic kidney disease and the Veteran’s active duty service, to include exposure to herbicide agents. Pursuant to the Board remand, an addendum opinion was obtained in April 2020. The April 2020 VA examiner explained that high blood pressure is a major cause of chronic kidney disease, as chronic high blood pressure can damage blood vessels which can reduce the blood supply to the kidneys damaging filtering units and, as a result, the kidneys may stop removing wastes and extra fluid from your blood. The extra fluid in your blood vessels may build up and raise blood pressure even more. As such, the VA examiner concluded that the Veteran’s chronic kidney disease was at least as likely as not caused by the Veteran’s hypertension. The Board finds that this medical opinion is highly probative because it is based on a thorough review of the record, it contains details of the Veteran's history, and clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (2008). Based on this opinion, the Board finds that there is sufficient medical evidence to etiologically link the Veteran's chronic kidney disease to his newly service-connected hypertension. As such, the Board has found that all elements of service connection for chronic kidney disease have been met and that service connection is warranted for this disability. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. R. Montalvo, 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.