Citation Nr: 21062820 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 13-16 192 DATE: October 12, 2021 ORDER Entitlement to service connection for hypertension is denied. REMANDED Entitlement to service connection for a dental condition for treatment purposes only is remanded. 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. 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, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1966 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2010 and December 2011 rating decisions by Department of Veterans Affairs (VA) Regional Offices (ROs). In August 2014, the Veteran presented testimonial evidence at a Travel Board hearing held before the undersigned Veterans Law Judge. A transcript is of record. These claims were previously before the Board and were remanded for further development in April 2015 and August 2020. They have since been returned for appellate review. 1. Entitlement to service connection for hypertension is denied. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304. 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran has a current diagnosis of hypertension, as reflected in VA treatment records. Hypertension is an enumerated chronic condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. The Veteran's service treatment records (STRs), however, do not show a pattern of elevated blood pressure levels or a diagnosis of hypertension during service. Additionally, his blood pressure was normal at separation. Furthermore, the Veteran has not alleged that his hypertension manifested within a year of separation from active duty or that he experienced a continuity of symptomatology thereafter. Rather, while the Veteran has previously stated that he would occasionally have high blood pressure readings in the 1970s or 1980s, he testified at the Board hearing that he was diagnosed with hypertension maybe as early as the 1980s, and reported at a recent VA examination that he was diagnosed in 1990. A May 2011 private treatment record states that the Veteran was diagnosed with hypertension in April 2004. The weight of the evidence is thus found to demonstrate that the Veteran's hypertension did not manifest during or within one year of his separation from active service; and presumptive service connection for hypertension as a chronic disease is not warranted. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, 708 F.3d 1331. The Veteran contends that he suffers from hypertension related to his exposure to Agent Orange during service. Alternatively, he contends that his hypertension is secondary to his service-connected diabetes mellitus, type II and/or autonomic neuropathy. For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, a veteran who, during active military, naval, or air service, served 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 service. 38 U.S.C. § 1116(f). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). For veterans who have been exposed to herbicide agents, certain diseases are acknowledged to be presumptively related to such exposure. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). While hypertension is not included in the list of diseases acknowledged to be presumptively related to exposure to herbicide agents, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this regard, in Update 11 (2018), the National Academy of Science Institute of Medicine (NAS) upgraded hypertension from its classification in the category of "limited or suggestive" evidence of an association with exposure to Agent Orange to the category of "sufficient" evidence of an association. According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. Here, it is noted that the record demonstrates that the Veteran's active service included service in the Republic of Vietnam. Therefore, it is presumed that he was exposed to herbicide agents in service. See 38 C.F.R. § 3.307(a). Pursuant to the Board's August 2020 remand directives, a VA medical opinion was provided in October 2020. The examiner opined that the Veteran's hypertension was less likely than not caused by his exposure to Agent Orange or any herbicide. She stated that the knowledge-based evidence shows that hypertension is caused by changes in the arteriolar bed causing increased resistance, and that family history, race, diet high in fat, smoking, aging, and sedentary lifestyles play a role in the development of hypertension. The same VA examiner, in a January 2020 opinion, stated that based on her review of the various research studies, there is no scientific evidence that proves that hypertension is caused by the exposure to Agent Orange or any herbicide. The examiner acknowledged the NAS update moving hypertension to the category of "sufficient" evidence of an association with exposure to herbicides, but noted that the firm conclusion was still limited because, as laid out in the update, "chance, bias, and confounding factors could not be ruled out with confidence." She pointed out that review of the underlying studies show that the evidence is still weak because the incidents of hypertension were self-reported and there was a significant gap in knowledge. She specifically acknowledged the positive opinion in this case provided by Dr. N. in February 2020, that due to the NAS update's elevation of the association of hypertension and Agent Orange to sufficient, it is at least as likely as not that the Veteran's hypertension is a result of exposure to herbicides in service, but noted that Dr. N. did not address the additional limiting phrases/comments in the article. The Board affords great probative weight to the January 2020 and December 2020 VA examiner's opinion, as such considered all of the pertinent evidence of record, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Here, while Dr. N. is also found to have the medical education and experience necessary to render a credible opinion, the opinion of the VA examiner is found to be more persuasive, as it included a more in-depth explanation of the conclusion and underlying studies referenced in the NAS update. The Board has considered the Veteran's statements that his hypertension is related to his service and exposure to herbicide agents; however, as a lay person, he has not shown that he has the specialized training sufficient to render such an opinion. Specifically, the etiology of such disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, the etiology of hypertension, such falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Accordingly, the Veteran's opinion as to the etiology of his hypertension is not competent evidence on the critical question at issue, here. As the most probative evidence weighs against finding a causal connection between the Veteran's hypertension and his exposure to Agent Orange during service, a preponderance of the evidence is found to weigh against the claim. An award of service connection for hypertension on a direct basis, as related to the Veteran's exposure to herbicide agents, is therefore not warranted. The Board will now address the Veteran's asserted theory of entitlement to service connection for hypertension as secondary to his service-connected diabetes mellitus, type II or neuropathy. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303(a), 3.310. Establishing service connection on a secondary basis requires evidence sufficient 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. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). The Veteran was provided with a VA examination in January 2020 and an addendum VA medical opinion in October 2020, in which the examiner opined that the Veteran's hypertension was less likely as not caused or aggravated by his diabetes mellitus, type II. The examiner noted that the Veteran's diabetes was diagnosed in 2012 and hypertension reportedly since the 1990s. She noted that there were no changes in the Veteran's hypertension since he was diagnosed with diabetes mellitus, type II, and no evidence of renal disease or proteinuria. In the addendum opinion, she noted that the hypertension predated the diabetes diagnosis by several years, and thus the diabetes would not have caused the hypertension, and that the resulting effects of the three ways in which high glucose levels in the blood can increase blood pressure were not shown by the evidence (i.e., no renal or kidney disease). In the October 2020 addendum opinion, the VA examiner also stated an opinion that the Veteran's hypertension was less likely than not proximately due to or the result of peripheral neuropathy. She reasoned that there is no conclusive medical evidence or studies in the medical literature that can support a cause and effect relationship between hypertension and peripheral neuropathy. The examiner noted that the prior remand noted a comment by a neurologist that "autonomic neuropathy can cause hypertension," but that there was no explanation or rationale noted. She responded that the effect of autonomic neuropathy in the cardiovascular system is hypotension and not hypertension, citing to relevant medical literature. The examiner also concluded that the hypertension was less likely than not aggravated by the service-connected lower extremity neuropathy, as the Veteran's cumulative pattern of blood pressure readings showed no significant deviation from baseline, and there were no reports of hypertensive nor hypotensive episodes. At the August 2014 Board hearing, the Veteran testified that his doctor had told him that autonomic neuropathy can cause all sorts of problems, including difficulties with blood pressure regulation. The claims file includes a July 2009 statement from the Veteran's private neurologist, Dr. G., in which he states that as a feature of the Veteran's neuropathy, he has autonomic dysfunction, which can affect control of blood pressure. In considering the evidence of record as a whole, the Board finds that a preponderance of the evidence weighs against a finding that the Veteran's hypertension is proximately caused or aggravated beyond its natural progression by his service-connected diabetes mellitus, type II or lower extremity neuropathy. The opinion of the VA examiner is found to represent the most probative evidence of record, as it included a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. The statement of the private neurologist has been considered, but the Board notes that while it indicates that autonomic dysfunction can affect control of blood pressure, it does not specifically indicate that it can cause or aggravate high blood pressure. The explanation of the VA examiner, citing to medical literature, indicating a relationship between hypotension and autonomic dysfunction is found to be consistent with the statement provide by the private neurologist. Again, the Board has considered the Veteran's statements and his sincerely held belief that his hypertension is related to his service-connected disabilities; however, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. Accordingly, the Veteran's opinion as to the relationship between his hypertension and his service-connected diabetes mellitus, type II or lower extremity neuropathy is not competent evidence on the critical question at issue here. Based on the foregoing, the Board finds that the Veteran's hypertension is not shown to be causally or etiologically related to any disease, injury, or incident during service, did not manifest to a compensable degree within one year of service discharge, and is not shown to be proximately caused or aggravated by a service-connected disability. Consequently, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for hypertension. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for a dental condition for treatment purposes only is remanded. This issue was previously characterized as "entitlement to service connection for a dental disability, to include for outpatient treatment purposes." However, upon further review of the file and the Veteran's statement submitted with his Notice of Disagreement that he was requesting service connection of a dental condition for treatment only, the Board has recharacterized the issue as reflected, above. In its August 2020 remand, the Board directed that the RO refer the claim for service connection for a dental condition for treatment purposes to the appropriate VA Medical Center to render a determination whether the Veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161. The record reflects that a request was made of the VAMC to determine if the Veteran meets the basic eligibility requirements for dental treatment, and that the VAMC responded in February 2021 with a "no records response." At present, the record does not reflect that the VAMC made the requested determination on the question of basic eligibility for outpatient dental treatment. However, the Board notes that the Veteran's Veterans Health Administration (VHA) file has not been associated with the electronic claims file, and thus it remains unclear whether a determination has been made. Remand is therefore needed to refer the matter to the appropriate VAMC to upload all documentation related to the Veteran's claim for service connection of a dental condition for treatment purposes only to the electronic claims file, including but not limited to any determination/adjudication rendered on the question of the Veteran's basic eligibility for dental treatment under 38 C.F.R. § 17.161. As initial consideration of the claim for service connection of a dental condition for treatment purposes only must be completed by VHA prior to any adjudication of a service connection claim for treatment purposes by VBA, appellate review of that issue is not proper at this time. See 38 C.F.R. § 3.381. If the VAMC has not yet rendered a determination on the Veteran's basic eligibility for dental treatment under 38 C.F.R. § 17.161, such should be completed prior to any further adjudication by the RO and prior to the return of this claim to the Board. The matter is REMANDED for the following action: Refer the file to the appropriate VA Medical Center to associate all documentation from the Veteran's VHA claims file related to the claim for entitlement to service connection for a dental condition for treatment purposes only to the electronic record. If the VHA claims file does not include a previous determination by VHA of the Veteran's initial eligibility for outpatient dental treatment under 38 C.F.R. § 17.161, the VAMC must render such a determination and ensure that it is added to the electronic record. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Solomon, 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.