Citation Nr: 21063945 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 14-00 931 DATE: October 18, 2021 ORDER Entitlement to service connection for hypertension to include as due to herbicide agent exposure or as secondary to the Veteran's service-connected posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The preponderance of the evidence weighs against finding that the Veteran's hypertension began during military service, manifested to a compensable degree within one year of discharge from military service, is secondary to a service-connected disability or is otherwise related to an in-service injury or disease to include in service herbicide agent exposure. CONCLUSION OF LAW The criteria for service connection for hypertension due to military service to include as due to herbicide agent exposure or as secondary to a service-connected disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded in November 2015, March 2019, and June 2021 for further development. Upon review, all remand directives have been complied with. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. The duty to assist is not a one-way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Legal Criteria Generally, to establish a right to compensation for a present disability a veteran must show: (1) a present disability; (2) an 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 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). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated (increased in severity) the nonservice-connected disability for which service connection is sought. 38 C.F.R. § 3.310. A Veteran exposed to herbicide agents may also be entitled to presumptive service connection for certain enumerated diseases. A Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during to an herbicide agent unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a)(6)(iii). For veterans presumed to have been exposed to herbicides, certain enumerated diseases shall be service connected even though there is no record of such disease during service, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 (a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). Hypertension is considered a chronic disease. 38. C.F.R. § 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established for a chronic disease as enumerated for VA compensation purposes, to include hypertension, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for an enumerated "chronic disease" listed under 38 C.F.R. §3.309(a) can also be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§1110, 1112, 1113; 38 C.F.R. §§3.307(a)(3), 3.309(a). That is, under 38 C.F.R. §3.303(b), with an enumerated "chronic disease" such as arthritis is shown in service (or within the presumptive period under §3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. See also Groves v. Peake, 524 F.3d 1306, 1309 (2008). This rule does not mean that any manifestation of joint pain in service will permit service connection of arthritis first shown as a clear-cut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity of symptomatology. 38C.F.R. §3.303(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for hypertension to include as due to herbicide agent exposure or as secondary to the Veteran's service-connected disabilities. The Veteran contends that his hypertension is due to his active-duty service, to include exposure to herbicide agents, or alternatively, is secondary to his service-connected disabilities. VA treatment records establish that the Veteran has a current disability of hypertension. The Veteran is also currently service connected for posttraumatic stress disorder (PTSD), tinnitus, right hand index finger DIP fracture and bilateral hearing loss. Military personnel records confirm that the Veteran served in Vietnam from December 1968 to January 1970, therefore the Veteran is presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307 (a)(6)(iii). However, hypertension is not an enumerated disease entitled to presumptive service connection under 38 C.F.R. § 3.309(e). Nonetheless, service connection may be established on a direct basis if the evidence establishes a nexus or etiological relationship between the Veteran's hypertension and his military service, including exposure to herbicide agents. Service treatment records do not show a diagnosis of hypertension in service. The Veteran's April 1968 preinduction examination notes the Veteran as normal, with blood pressure of 110/70. Similarly, the Veteran's January 1970 separation examination notes that the Veteran reported being in excellent health. Upon examination, no hypertension was noted. Post service, a December 1999 physical examination in connection with an application for Social Security benefits notes blood pressure of 120/80. With no diagnosis of hypertension. February 2001 VA treatment records note blood pressure of 143/87; July 2010 VA treatment records note blood pressure of 130/80; August 2010 VA treatment records note blood pressure of 135/80; November 2010 VA treatment records note blood pressure of 128/84; July 2011 VA treatment records note blood pressure of 114/68. A January 2011 VA examination notes the Veteran has a history of hypertension. In a February 2012 letter, a private physician opines that it is at least as likely as not that the Veteran's hypertension is secondary to exposure to Agent Orange in Vietnam. The Board affords no weight to this opinion because the physician offered no supporting rationale. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). The Veteran was afforded a VA examination for hypertension in December 2016. The examiner noted a diagnosis of hypertension, initially diagnosed in September 2010. Following the examination, the examiner opined that the Veteran's hypertension is less likely than not related to service because the Veteran's hypertension developed many years after active service and hypertension is not listed as a presumptive condition related to Agent Orange exposure. An addendum VA opinion was obtained in December 2020. The examiner opined that the Veteran's hypertension is not directly caused by Agent Orange exposure because there is no medical literature which indicates that Agent Orange causes hypertension and hypertension is not listed as a presumptive condition related to Agent Orange exposure. The examiner also opined that the Veteran's hypertension is not secondary to his PTSD as there is no medical literature of PTSD as an etiology to developed hypertension. An additional addendum opinion also obtained in December 2020 continued to opine that the Veteran's hypertension is less likely than not proximately due to or the result of the Veteran's PTSD because there is no pathophysiological relation between PTSD and hypertension. A January 2021 addendum opinion also indicated that the Veteran's hypertension is less likely than not caused by agent orange exposure because there is no evidence on medical literature of herbicide agent exposure as a cause of etiology of hypertension. The examiner also opined that the Veteran's hypertension is not secondary to the Veteran's service-connected PTSD because there is no pathophysiological relationship between hypertension and PTSD, so the Veteran's hypertension is not aggravated by his PTSD. An addendum opinion was obtained in July 2021. With respect to direct service connection, the examiner opined that the Veteran's hypertension is less likely than not related to acknowledged exposure to herbicide agent exposure, as the Veteran's disability dates to 2010, the Veteran's separation exam shows normal blood pressure and there is no evidence in the records documents, history, or literature to support that the hypertension was caused by exposure during service. The examiner acknowledged the 2018 NAS study. With respect to secondary service connection, the examiner opined that the Veteran's hypertension is less likely than not due to his service connected disabilities to include PTSD, right finger fracture, bilateral hearing loss, and tinnitus because the Veteran's disabilities have all followed their natural progression without correlation to each other and medical literature does not support a finding that the Veteran's service connected disabilities have an etiological relationship with hypertension. The examiner further opined that the Veteran's hypertension was not aggravated by his service-connected disabilities as the Veteran's hypertension which began in 2010 has followed the natural progression. The examiner further noted that given the lack of in-service complaints for hypertension, the symptomatology, and the absence of additional pathology for several years after service the competent evidence supports that the condition was not aggravated during active service or due to his service-connected conditions. The examiner also noted that a baseline level of severity for the Veteran's hypertension could not be established. The Board affords probative weight to the July 2021 addendum opinions as they are consistent with and supported by the evidence of record which shows no hypertension in service, no diagnosis of hypertension for approximately 40 years post service and no evidence that the claimed disability was caused or aggravated by the Veteran's service-connected disabilities. The Veteran has not been shown to have the experience, training, or education necessary to give a probative etiology opinion on these claimed disabilities. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case in light of the education and training necessary to make a finding with regard to hypertension. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Entitlement to service connection for hypertension to include as due to herbicide agent exposure and as secondary to the Veteran's service-connected disabilities is denied. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Wimbish, 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.