Citation Nr: 21061880 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-36 394 DATE: October 5, 2021 ORDER Service connection for hypertension is denied. Service connection for glaucoma (claimed as vision), to include as due to hypertension is denied. FINDINGS OF FACT 1. The Veteran's hypertension did not onset in service or to a compensable degree within one year of his service separation, is not etiologically related to service, to include herbicide exposure, nor is it aggravated by his service-connected disabilities. 2. The Veteran's glaucoma (claimed as vision) did not onset in service or to a compensable degree within one year of his service separation, is not etiologically related to service nor is it aggravated by his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension, to include as due to herbicide exposure and as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for establishing entitlement to service connection for glaucoma (claimed as vision) have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1968 to December 1970. This matter comes before the Board of Veterans' Appeals (Board), on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously considered this appeal in March 2019 and remanded this issue for further development including scheduling VA examinations. The case returned to the Board for further appellate review. The requested actions have been completed by the AOJ, with no further action necessary to comply with the Board's remand directives, so this case is once again before the Board for further appellate consideration. The Board therefore find substantial compliance with the March 2019 remand as the requested examinations has been conducted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection will be granted for disability resulting from disease or injury incurred or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence establishing three elements: (1) the existence of a present disability; (2) in-service incurrence or aggravation of 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 on a secondary basis for a disability that is proximately due to or the result of an established service-connected disorder. See 38 C.F.R. § 3.310(a) (2017); Allen v. Brown, 7 Vet. App. 439 (1995). VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e) (2018). A Veteran who had a period of active service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a) (2018). The last date on which a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. If a Veteran was exposed to an herbicide agent during active service, the diseases enumerated at 38 C.F.R. § 3.309(e) shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii) (2018). However, Note 2 of 38 C.F.R. § 3.309(e) states that, for purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of Ischemic heart disease. An additional, possible presumption exists for certain chronic diseases, such as hypertension and other organic diseases of the nervous system, to include glaucoma. 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). Service connection may also be granted for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under section 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Entitlement to service connection for hypertension The Veteran seeks service connection for hypertension, which he asserts is etiologically related to his service-connected PTSD or his exposure to Agent Orange. See July 2017 VA Form 9. For VA compensation purposes, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. Note (1) provides that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. The Veteran has a current diagnosis of hypertension. See October 2019 VA examination. The evidence does not suggest onset of hypertension during active duty service. The service treatment records are negative for any diagnosis of or treatment for hypertension, and such a disability was not diagnosed until approximately 2013, more than 40 years after service. Here, after careful review of the Veteran's claims file, the Board does not find a diagnosis for hypertension during the Veteran's service period or the following one-year period. In fact, on the December 1970 report of medical examination completed in connection with his release from active duty he denied a history of high or low blood pressure and it was noted a blood pressure of 118/86. Because a diagnosis for hypertension was not diagnosed until decades after active-duty service, service connection for hypertension on a presumptive basis under 3.309 is, therefore, denied. Since the Veteran served in the Republic of Vietnam, the Board presumes that he was exposed to an herbicide agent. See 38 C.F.R. §§ 3.307. Hypertension, however, is not a disease identified as presumptively associated with herbicide exposure. 38 C.F.R. § 3.309(e). Nevertheless, the statutory and regulatory provisions governing presumptive service connection for certain diseases deemed to be associated with herbicide exposure is a legal consideration rather than a medical consideration. Meaning, the exclusion of hypertension from the list of disabilities for which a presumption may be assigned does not preclude a grant of service connection on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Alternatively, the Veteran claims that his hypertension is secondary to, or aggravated by, his service-connected PTSD. In April 2013, the Veteran submitted a DBQ for hypertension from a private clinician, indicating hypertension "diagnosed a few months ago." Private treatment records show diagnosis of essential NOS hypertension in January 2013. In April 2019, the Veteran submitted a letter from Dr. J.L.C., his primary care physician. Dr. J.L.C. stated that after reviewing the Veteran's record, he opined that the Veteran's current diagnosis of hypertension is more likely than not related to, caused, or aggravated by his active duty service. The physician did not provide a rationale for his opinion. In April 2019, the Veteran submitted another DBQ for hypertension from the same private clinician, Dr. J.L.C. The clinician noted a diagnosis of hypertension and that the Veteran reported he had served in Vietnam from August 1969 to February 1970. Dr. J.L.C. opined that "the elevated blood pressure is at least more likely than not related to, caused or aggravated by his active duty service." However, once again, a rationale for his opinion was not provided. The Veteran has been afforded VA examinations, and opinions were provided, in October 2019 and April 2020 regarding his hypertension claim. The October 2019 VA examination concluded the hypertension was less likely than not related to service. As to direct service, the VA examiner based his opinion partly on the absence of documented treatment or reports of symptoms relating to hypertension during service, a diagnosis in 2013, which was more than 1 year after military service. As to secondary service connection, the VA examiner opined that the Veteran's hypertension was not proximately due to or the result of the Veteran's service-connected disabilities. The VA examiner explained that the Veteran was diagnosed in 2013, "at the time of [diagnosis] he was 63 years old, obese, African American, mother with [history] of [hypertension] per medical records. So he was at the top listed risk factors for [hypertension] per UpToDate. His [diagnosis] was essential [hypertension], which means it is not caused by or not due to any other medical condition [Veteran] has/had." The examiner added that the Veteran's service-connected eczema is localized skin irritation, not one of the risk factors per UpToDate and that PTSD/Anxiety attacks are known to cause temporary increase in heart rate and blood pressure, which gets better and gets spontaneous relief once the anxiety precipitating trigger gets under control. However, this will not result in persistent, elevated blood pressure, resulting in hypertension and PTSD/anxiety is not one of the risk factors for HTN per UpToDate. The October 2019 VA examiner also opined that the Veteran's hypertension was not aggravated beyond its natural progression by his service-connected conditions because the Veteran was diagnosed in 2013, has been on the same medication since 2013 with blood pressure under good control and these facts indicate that there was no aggravation of his hypertension due to his service-connected eczema, PTSD/anxiety. The Veteran provided several articles indicating that there is a relationship between other herbicide exposure and the stress of service in a combat environment. In April 2020, an independent medical opinion was associated to the Veteran's file. The VA clinician opined that the Veteran's hypertension was less likely than not incurred in or caused by the claimed in-service injury, event, or illness nor was it aggravated by the service-connected PTSD. The examiner reasoned that the Veteran "was officially diagnosed with hypertension around 2013 and has remained on the same treatment since diagnosis. Multiple records prove that his blood pressure is currently very well controlled with his current treatment, not difficult to control as you would expect if his blood pressure was aggravated by other factors such as PTSD. The [V]eteran has not developed any other diseases or complications due to agent orange exposure such as diabetes, ischemic heart disease, prostate cancer, etc. The article included with the [V]eteran's claim only indicated that agent orange exposure and combat exposure are risk factors for developing hypertension, but it does not include in what time frame one would expect to develop hypertension after exposure to agent orange. It also stated that Veterans who sprayed the herbicide were at greater risk than non-veterans, who did not spray the herbicide. It did not include the Vietnam veterans who did not spray in this comparison. Also, the abstract states that the mean diastolic pressure was higher in veteran's who sprayed versus non-veteran non-sprayers but does not state that the herbicide exposure was a primary cause of hypertension. The Veteran was 63 at the time of diagnosis. He is of African American decent [sic]. His mother had high blood pressure and his father had heart disease. His BMI in 2013 was 30.71. The primary care note dated [August 2013] also indicated that he was "inactive." A letter in support of claim written by the [V]eteran and dated [January 2014] documented, "my wife tells me I snore very loudly and sometimes gasp for air." While there is no record that he has been diagnosed with sleep apnea, there is no record of a sleep study stating that he does not have sleep apnea. The loud snoring, gasping for air, and high BMI place him at a very high risk of obstructive sleep apnea, which is also a major risk factor for hypertension." The Board has considered all of the Veteran's submitted statements. These reflect the Veteran's belief that his hypertension was caused by herbicide exposure or caused and/or aggravated by his service-connected disabilities. (The Board has already addressed herbicide exposure above.) Hypertension is not susceptible to lay observation, and the etiology is complex. As such, the Board finds that the Veteran is not competent to provide a medical opinion on this matter. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); see also Jandreau v. Nicholson, 492 F.3d. 1372 (2007. Accordingly, the Veteran's lay statements in this regard are not competent or probative evidence supporting his claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Considering the entire claims file before the Board, the competent and probative evidence is contrary to an award of service connection on a direct or secondary basis. While hypertension is not on the list of diseases recognized by VA as being presumptively related to exposure to herbicide agents, the National Academies of Sciences, Engineering, and Medicine (NAS) in its most recent Agent Orange update moved hypertension from limited or suggestive of an association between hypertension and herbicide exposure to sufficient evidence of an association. See Veterans and Agent Orange Update 11 (2018). The standard for this new category is epidemiologic evidence is sufficient to conclude that there is a positive association. That is, a positive association has been observed between exposure to herbicides and the outcome in studies in which chance, bias, and confounding could be ruled out with reasonable confidence. For example, if several small studies that are free of bias and confounding show an association that is consistent in magnitude and direction, there could be sufficient evidence of an association. There is sufficient evidence of an association between exposure to the chemicals of interest and hypertension. However, while the NAS has found some connection between herbicide exposure and hypertension, hypertension is not a presumptive condition at this time, which means that the medical evidence in each specific case must be reviewed, and medical opinions reached considering the totality of their health and medical circumstances. Here, the probative medical evidence of record has found that it is less likely than not that the Veteran's hypertension was the result of his presumed exposure to herbicides during his service in the Republic of Vietnam. The April 2020 VA examiner provided a detailed rationale for the opinion offered and explained how the evidence does not show that the Veteran's hypertension is related to his service, including herbicide exposure. Similarly, the preponderance of the evidence is against a finding that the hypertension is caused or aggravated by his service-connected disabilities. The examiners reviewed the records, considered the evidence and examined the Veteran. The 2019 and 2020 VA examiners provided clear explanations as to why the condition is not considered to be related to or aggravated by the Veteran's service-connected PTSD or eczema. The 2019 examiner combined with the 2020 examiner provided thorough rationales and cited the Veteran's multiple risk factors including lifestyle, diet and genetics. The VA examiner's opinions are probative, because they are based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304. While the Board acknowledge the private positive opinion provided by Dr. J.L.C., it has been afforded less probative weight because no rationale was provided in support of the state opinion. Consequently, the Board gives more probative weight to the competent medical evidence. Based on the forgoing, the Board finds that a preponderance of the evidence is against finding that the Veteran's hypertension was caused or aggravated by his service-connected disabilities or was due to herbicide exposure. As a preponderance of the evidence is against service connection on a direct or secondary basis, the benefit of the doubt doctrine does not apply, and the claim for service connection for hypertension must be denied. 38 U.S.C. § 5107; Gilbert, 1 Vet. App at 53. 2. Entitlement to service connection for glaucoma (claimed as vision) The Veteran asserts that his current glaucoma diagnosis is secondary to the hypertension. See July 2017 VA Form 9. As noted above, the first element of service connection requires medical evidence of a present disability. Here, a current diagnosis of glaucoma bilateral has been established. See March 2014 DBQ; October 2019 VA Examination Report. The issue that remains disputed is whether or not the Veteran's current glaucoma is related to service or secondary to service-connected disabilities. Service treatment records from June 1970 note treatment for a nodule on left lower eyelid. However, the Veteran's December 1970 release from active duty examination report noted normal eyes. A January 1977 reenlistment examination also noted normal eyes. The Veteran submitted a May 2013 eye conditions DBQ, the private examiner diagnosed the Veteran with glaucoma and cataracts. The March 2014 VA examination report notes diagnoses of glaucoma, nuclear sclerotic cataracts, hypertensive retinopathy and pinguecula. These reports did not address the etiology of the Veteran's glaucoma. In the June 2017 VA hypertension DBQ, the private physician noted a nexus between the hypertension and glaucoma. In April 2019, the Veteran submitted a letter from Dr. J.L.C., his primary care physician. Dr. J.L.C. stated that after reviewing the Veteran's record, he opined that the Veteran's current diagnosis of hypertension is more likely than not related to, caused, or aggravated by his active duty service. He also opined that the Veteran's glaucoma diagnosis is directly related to the hypertension diagnosis. The physician did not provide a rationale. The Veteran was afforded a VA examination in October 2019. The VA examiner confirmed diagnoses of glaucoma, cataracts, hypertensive retinopathy and pinguecula. He opined that the Veteran's glaucoma is less likely as not (less than 50/50 probability) incurred in or caused by or aggravated by the Veteran's hypertension, PTSD, any other service-related condition, or time during service. The VA examiner reasoned that the Veteran was not diagnosed with glaucoma until 2013, many decades after service and although the glaucoma was likely present for many years prior to diagnosis, there are no records of care between service and the time of diagnosis to better establish a time frame of glaucoma development. The Veteran has several of the best established risk factors for the development of glaucoma including ocular hypertension, increasing age, ethnicity, and a family history of glaucoma. The examiner explained that ocular hypertension is not the same as hypertension. A 10mmhg rise in systolic blood pressure is associated with only a small increase in IOP (approximately 0.27mmhg) ..., but there is also an association between too low of blood pressure and glaucoma progression. The Veteran had extremely elevated intraocular pressures (58mmhg in the right eye, 40mmhg in the left eye) at the time of diagnosis of glaucoma." The VA examiner added that he believes the primary care physician, Dr. C., who submitted a letter saying the glaucoma is secondary to hypertension is confusing systemic hypertension with ocular hypertension and/or is not aware of the complex relationship between the systemic hypertension and glaucoma. The Board finds the October 2019 VA examiner opinion highly probative to the question at hand. Here, the probative medical evidence of record has found that it is less likely than not that the Veteran's glaucoma is related to service. The October 2019 examiner provided a detailed rationale for the opinion offered and explained how the evidence does not show that the Veteran's glaucoma is related to his military service. Additionally, there is no evidence glaucoma was diagnosed in service or within one year of service and as such service connection on a presumptive basis is not warranted. The Board has considered all of the Veteran's submitted statements. It is well established that lay persons without medical training, such as the Veteran, are not competent to provide medical opinions on matters requiring medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) Here, the Veteran is not competent to opine as to the etiology of his glaucoma as the specific medical issue in this case falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Furthermore, even if he was found competent to provide such an opinion, the reports and opinion provided by the VA examiner are more probative. As noted above, those individuals have specialized medical training, education, and expertise that the Veteran is not shown to have. As such, those opinions are afforded more probative weight than the Veteran's lay assertions. Further, to the extent that the Veteran claims that he is entitled to service connection for glaucoma as secondary to his hypertension, service connection is not in effect for hypertension nor, as noted above, is service connection appropriate for hypertension. Therefore, as the underlying disorder is not service connected, the Veteran's claim for secondary service connection on this basis is without legal merit and must be denied due to a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). For the foregoing reasons, the Board finds that service connection for glaucoma must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Romero-Sanchez, 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.