Citation Nr: 21005205 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 16-63 067 DATE: January 29, 2021 ORDER Entitlement to service connection for hypertension, to include as due to herbicide exposure, is denied. Entitlement to service connection for a cardiovascular condition, claimed as ischemic heart disease, to include as due to herbicide, exposure is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s currently diagnosed hypertension was incurred in or related to service, including due to herbicide agent exposure. 2. The preponderance of the evidence is against finding that the Veteran has a current diagnosis of ischemic heart disease which was incurred in or related to service, including due to herbicide agent exposure. The Veteran has a current diagnosis of heart murmur which is not related to any cardiac condition. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension, to include as due to herbicide exposure have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a cardiovascular condition, claimed as ischemic heart disease, to include as due to herbicide exposure have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to September 1967 including a period of active duty service in the Republic of Vietnam. In September 2019, the Board of Veteran’s Appeals (Board) found that the Veteran had submitted new and material evidence so that his petition to reopen both of his previously denied claims was granted. The claim for service connection of hypertension was denied in June 2008, and the claim for service connection of ischemic heart disease was initially denied in December 2010. The Veteran did not timely appeal either decision, nor did he submit new and material evidence within one year of either, so that both decisions became final. In September 2019, after reopening both claims, the Board then remanded both of them so that the Veteran could be afforded VA medical examinations to further develop the claims. The Veteran contends that he suffers from hypertension and ischemic heart disease, and that both disorders are service connected. It is undisputed that the Veteran served in the Republic of Vietnam and for that reason is presumed to have been exposed to herbicide agents. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. “Service connection” basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Alternatively, VA regulations allow for a current disability to be service connected if the evidence of record reveals the Veteran has a current diagnosis that was chronic in service, or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303 (b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). However, in Walker, the Federal Circuit overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as “chronic” in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to an herbicide agent if a listed chronic disease manifests to a degree of 10 percent disabling or more, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a). The presumption is rebuttable. 38 C.F.R. § 3.307 (d). Additionally, if a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of the disease during service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309 (e). A Veteran is presumed to have been exposed to herbicides if he or she served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, or in a unit that operated in or near the Korean DMZ in an area in which herbicides are known to have been applied between April 1, 1968 and August 31, 1971, 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)(6)(iii)-(iv). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Service Connection 1. Entitlement to service connection for hypertension, to include as due to herbicide exposure. The Board notes that hypertension is not a listed disease under 38 C.F.R. § 3.309 (e). Therefore, presumptive service connection due to herbicide agent exposure is not warranted. However, service connection may be established on a direct service connection basis due to in-service exposure to agent orange. See Combee v. Brown, 34 F.3d 1039, 1042(Fed. Cir. 1994). The Veteran has a current diagnosis of hypertension. He was afforded a VA examination with regard to his claimed hypertension in December 2019. The examiner provided an addendum to that examination in October 2020. The examiner indicated that the Veteran currently has a diagnosis of hypertension. The Veteran first claimed service connection for a hypertension disability in December 2007 on a form entitled “Veteran’s Application for Compensation or Pension.” The Veteran lists the date of onset for hypertension as “1979” with treatment in Rome NY. The Veteran separated from service in 1967, so his statement regarding the date of onset as 1979 reflects that twelve years transpired between the Veteran’s service separation and his report of the onset hypertension. The Veteran’s STR’s do not reflect any diagnosis of hypertension. Accordingly, with a gap of twelve years, the Veteran has not demonstrated that his current diagnosis of hypertension was chronic in service, or, that it was seen in service with any continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303 (b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). The Veteran’s representative stated that the Veteran’s hypertension could have had its onset during active duty service because the separation examination in September 1967 shows a blood pressure reading of 134 / 84. In support, the representative cited to the American Heart Association: a systolic pressure reading between 120 and 139 and or a diastolic pressure reading between 80 and 89 indicates pre-hypertension readings. The representative also referenced a number of scholarly articles for the proposition that pre-hypertension is associated with a threefold increase in the incidence of hypertension. The Veteran’s blood pressure numbers on separation from service constituted a pre-hypertension rating. The medical examiner responded to the representative’s contention and opined that the evidence was not sufficient to support the conclusion that the Veteran’s hypertension could have had its onset during active duty service. The examiner included excerpts from a scholarly article with regard to blood pressure measurement in the diagnosis and management of hypertension in adults with full citations. The examiner opines that several factors affect the diagnosis of pre-hypertension and hypertension. With reference to the cited literature, blood pressure is usually taken several times a day by a trained person and at the same time of day. Several factors affect the diagnosis such as the time of measurement, the type of device, the cuff size, the patient position, the placement of the cuff, the technique of measurement, and the number of measurements. Blood pressure is variable throughout the day. A one-time elevated blood pressure is not sufficient evidence to diagnose pre-hypertension as we do not have enough evidence to support the manner that the blood pressure was taken and unknown circumstances. The examiner further states said the Veteran was not diagnosed with hypertension until 2006 which the examiner states was almost 40 years after separation. Similarly, for VA rating purposes, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. As mentioned above, service connection for certain enumerated disabilities may be presumed where, as here, the Veteran served on the ground in the Republic of Vietnam during the Vietnam Era. Hypertension is not an enumerated disability under 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307 (a)(6). In October 2020, the VA examiner was asked to opine whether the Veteran’s currently diagnosed hypertension is due to the conceded herbicide exposure. The examiner expressed the opinion that the Veteran’s hypertension is less likely than not, less than 50 percent probability, due to herbicide exposure because to date there is no known medical association between hypertension and Agent Orange exposure based on the examiners review of up to date medical literature. The October 2020 addendum and December 2019 medical opinions weigh against the Veteran’s claim. The opinions contain competent and probative evidence. The VA examiner reviewed the claims file, interviewed the Veteran, performed appropriate examinations, and provided medical opinions supported by well-reasoned rationale. There are no conflicting competent medical opinions of record. Accordingly, entitlement to service connection for hypertension is denied. The Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, account for the evidence that it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008). Given the foregoing, the evidence does not demonstrate that the Veteran suffered from hypertension or pre-hypertension during service, or that he had continuity of symptoms after separation from service, where the first medical diagnosis in the Veteran’s claims file reflects a date of 2006, and the Veteran himself reported a date of onset of 1976, twelve years after he left active duty. The preponderance of the evidence is against a finding that the Veteran’s current hypertension disability is connected to his active service through direct symptoms or chronic symptoms. To the extent that the Veteran believes that his hypertension is related to service, to include his inservice herbicide exposure, he is competent to relate his personal experiences, but his statements must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372 at 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). To the extent that the Veteran is attempting to establish an etiological link between his hypertension and military service, he is not competent to attest to the etiology of his hypertension, as such requires medical knowledge and training. Id. Therefore, the Veteran’s assertions are afforded little probative weight, particularly where the competent medical evidence of record weighs against the claim. Absent competent, credible, and probative evidence of a nexus between the Veteran’s hypertension disability and his active service, the Board finds that the Veteran’s hypertension was not incurred during service and is not etiologically related to service. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107 ; 38 C.F.R. § 3.102. 2. Entitlement to service connection for a cardiovascular condition, claimed as ischemic heart disease, to include as due to herbicide exposure The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110 ; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran does not have a current diagnosis of ischemic heart disease or a cardiovascular condition. The Veteran was afforded a VA examination with regard to his claimed cardiovascular conditions in December 2019. The examiner provided an addendum to that examination in October 2020. The examiner indicated that the Veteran does not suffer from any ischemic heart disease or cardiovascular condition. The Veteran does have a current diagnosis of a grade two asymptomatic systolic murmur. The examiner opined that the murmur is not related to any cardiac condition. No ischemia and no heart conditions were noted on echocardiograms or nuclear stress echo, neither were any such conditions noted in the service treatment records. The October 2020 addendum and December 2019 medical opinions weigh against the Veteran’s claim. The opinions contain competent and probative evidence. The VA examiner reviewed the claims file, interviewed the Veteran, performed appropriate examinations, and provided medical opinions supported by well-reasoned rationale. There are no conflicting competent medical opinions of record. To the extent that the Veteran believes that he has a cardiovascular disability that is related to service, to include his inservice herbicide exposure, he is competent to relate his personal experiences, but his statements must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372 at 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). To the extent that the Veteran contends that he has a current cardiovascular disability, he is not competent to provide such a diagnosis, as such requires medical knowledge and training. Id. Therefore, the Veteran’s assertions are afforded little probative weight, particularly where the competent medical evidence of record weighs against the claim. Accordingly, entitlement to service connection for a cardiovascular condition claimed as ischemic heart disease is denied because the Veteran does not have any such current disability. Upon review of the evidence of record, the Board finds the   preponderance of the evidence is against the claim, and so the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107 ; 38 C.F.R. § 3.102. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.M. Schneider 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.