Citation Nr: 21065588 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 15-05 487 DATE: October 26, 2021 ORDER Service connection for a bilateral shoulder condition, to include arthritis, is denied. Service connection for bladder cancer is granted. Service connection for hypertension as secondary to service-connected prostate cancer and bladder cancer is granted. FINDINGS OF FACT 1. The evidence preponderates against a finding that the Veteran's shoulder disability was incurred in or is otherwise related to service, manifested to a compensable degree within a year of separation, or was otherwise noted in service with continuity thereafter. 2. The Veteran was diagnosed with bladder cancer and served in the Republic of Vietnam during the period from September 1970 to July 1971. 3. The Veteran's hypertension was not incurred in service and is not otherwise related to an in-service injury, disease, or event, to include his presumed exposure to herbicide agents; hypertension did not manifest to a compensable degree within a year of separation or with continuity thereafter; and the evidence preponderates against a finding that the Veteran's hypertension was proximately due to or the result of a service-connected disability, to include posttraumatic stress disorder (PTSD). 4. The Veteran's hypertension was aggravated by his service-connected prostate cancer and bladder cancer. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral shoulder disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for bladder cancer are met. 38 U.S.C. §§ 1110, 1116(a)(2), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for entitlement to service connection for hypertension as aggravated by service-connected prostate cancer and bladder cancer are met. 38 U.S.C. §§ 1110, 5107; 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 October 1969 to April 1972. The Veteran passed away in August 2019, and the appellant is his surviving spouse. This matter is on appeal from a February 2014 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, a videoconference hearing was held with the Veteran and the appellant before the undersigned. A transcript of the hearing is in the record. In September 2019, the Board dismissed the matter, as the Board no longer had jurisdiction due to the death of the Veteran. In April 2020, the RO granted the substitution request from the appellant. Accordingly, the appellant in this case has been properly substituted for the purposes of the foregoing claims. 38 U.S.C. § 5121A. The case was before the Board in October 2020 when it was remanded for further development. Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131. To establish service connection, the evidence must show: (1) the existence of a current 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. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Connecting the current disability to service may be accomplished through statutory presumption or through affirmative evidence that shows inception or aggravation during service or that otherwise indicates a direct relationship between service and the current disability. 38 C.F.R. § 3.303(a), (d). The statutory presumptions and VA regulations implementing them are intended to allow service connection for certain diseases when the evidence might otherwise not indicate service connection is warranted. 38 C.F.R. § 3.303(d). In this case, military personnel records reflect that the Veteran served in the Republic of Vietnam from September 1970 to July 1971. 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 that service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Thus, the Veteran is presumed to have been exposed to herbicide agents in service. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease, such as arthritis or hypertension, is shown as such in service or during the presumptive period for chronic diseases, subsequent manifestations of the same chronic disease are generally service connected. Entitlement to service connection based on chronicity of symptoms pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Alternatively, service connection may be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that it was either caused or aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a), (b); Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Bilateral Shoulder Condition The appellant contends that service connection for a bilateral shoulder condition, to include arthritis, is warranted due to the Veteran's service. In this case, November 2011 VA treatment records note that an X-ray of the left shoulder showed a strain injury likely from repetitive use. A January 2016 VA X-ray report reflects degenerative joint disease in the left shoulder. September 2018 VA treatment records note a diagnosis of arthritic pain in the shoulders. January 2019 VA treatment records note that the Veteran developed right shoulder pain after a long hunting trip. Thus, the first element of Shedden is satisfied. During the April 2019 hearing, the Veteran stated that he built fire bases and bunkers in service. He also stated that his civilian career after service in farming involved using his shoulders all the time. He stated that he experienced shoulder pain that was no more than six out of ten. He stated that his farming operations involved unloading heavy bags and stated that it is "just a matter of time before you have to stop and take breaks." In January 2021, VA obtained a medical opinion in which the clinician opined that the Veteran's bilateral shoulder condition was less likely than not incurred in or caused by service. He noted that a review of the service treatment records did not reveal any shoulder complaints or shoulder problems during service. He noted no documentation of the Veteran having any difficulty performing the duties of his military occupational specialty due to a shoulder condition and no profile for a shoulder condition. The clinician noted no complaints of shoulder problems after service until 2006 when the Veteran reported shoulder pain after falling off a tractor. He noted intermittent complaints of shoulder pain from 2006 to 2019 with degenerative changes of the left shoulder noted on X-rays in 2016. The clinician discussed the Veteran's lay reports of symptomatology and reports of repetitive motions and lifting during service. He acknowledged that the Veteran performed repetitive motions and lifting during service, but concluded that there was no pathophysiological basis for the development of arthritis of the shoulders with routine use over three years of service. He also noted that the Veteran worked on a farm after service and stated that the bilateral shoulder condition is more likely than not directly related to the cumulative effects of working and daily use of the shoulders over the 35 plus year period after service. As this rationale reflects thorough consideration of the nature of the Veteran's condition and his medical history, the Board assigns a high degree of probative value to this opinion. The Board acknowledges the lay statements discussed above in which the Veteran competently, credibly, and sincerely discussed his in-service activities and his shoulder pain. The Veteran was competent to report the readily observable symptoms of his shoulder condition, such as pain. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). However, the Veteran, as a lay person, was not competent to opine on the etiology of his shoulder condition because the complexity of the issue requires the education, training, and expertise of a medical professional who is qualified to offer a medical opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board therefore assigns minimal probative value to the Veteran's lay statements for the purpose of determining the medical cause for his shoulder disability. Accordingly, the Board finds that the evidence preponderates against a finding that the Veteran's bilateral shoulder condition was incurred in service or was otherwise related to an in-service injury, disease, or event. Further, the record does not reflect that arthritis in either shoulder manifested to a compensable degree within a year of separation. The Veteran was discharged from service in 1972 and the earliest indication of arthritis occurred in approximately 2016. Consequently, the Veteran's arthritis did not manifest to a compensable degree within one year of discharge from service. Likewise, regarding continuity of symptomatology, signs or symptoms indicative of a bilateral shoulder condition were not noted in service or in the presumptive period following service. Therefore, it is not necessary to further address any evidence regarding continuity of symptomatology. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1339. As such, service connection based on a continuity of symptomatology theory of entitlement is not warranted. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1339. As such, the Board finds that the preponderance of the evidence is against the appellant's claim. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Bladder Cancer The appellant contends that service connection for bladder cancer is warranted due to the Veteran's service, to include as secondary to his service-connected prostate cancer. In this case, March 2014 VA treatment records note a diagnosis of bladder cancer from a specimen. August 2016 VA treatment records note a bladder tumor with transurethral resection. Thus, the first element of Shedden is satisfied. During the pendency of this appeal, bladder cancer was added as a disease presumptively associated with exposure to herbicide agents under 38 U.S.C. § 1116(a)(2). Thus, given the Veteran's presumed exposure to herbicide agents, service connection is warranted so long as there is not sufficient evidence to rebut the presumption. See 38 C.F.R. § 3.307(d). In January 2021, VA obtained a medical opinion in which the clinician opined that the Veteran's condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The clinician discussed the latest findings from the National Academy of Sciences and stated that they changed its category of association with herbicide exposure for bladder cancer from "inadequate or insufficient" evidence to "limited or suggestive" evidence of an association. He stated that this statistical association has not established a causal relationship and that there is no established medical nexus. As this reasoning reflects thorough consideration of the medical literature, the Board assigns a high degree of probative value to this finding. Further, the January 2021 clinician opined that the Veteran's condition was less likely than not proximately due to or aggravated beyond its natural progression by a service-connected condition. The clinician explained that the pathology report for bladder cancer showed that the urethral carcinoma had invaded the prostatic stroma and that there was also incident prostatic cancer involving less than one percent of the prostate. He noted that surgery with a radical cystosprostatectomy, urethrectomy, and ileal conduit urinary diversion was performed. He noted that there was no objective evidence for any proximate cause for the bladder cancer as the treatments and surgery were driven by the bladder cancer condition, and the prostate cancer was an incidental finding. He noted that there was no objective evidence for any aggravation of the bladder cancer, as the treatment and surgery were driven by the bladder cancer condition. The Board acknowledges the negative nexus opinion obtained in January 2021 but finds that this evidence is not sufficient to qualify as affirmative evidence to the contrary to rebut the chronic disease presumption. The expression "affirmative evidence to the contrary" does not require a conclusive showing, but such a showing as would, in sound medical reasoning and in the consideration of all evidence of record, support a conclusion that the disease was not incurred in service. 38 C.F.R. § 3.307(d). Although the January 2021 opinion is probative to the extent that it reflects thorough consideration of the medical literature, the examiner did not affirmatively attribute the Veteran's disease to an alternative cause. Accordingly, having resolved all reasonable doubt in favor of the appellant, the Board finds that service connection for bladder cancer is warranted. 38 U.S.C. §§ 1110, 1116(a)(2), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. Hypertension The appellant contends that service connection for hypertension is warranted due to the Veteran's service, to include as secondary to a service-connected disability, to include PTSD, or as due to his presumed exposure to herbicide agents. In this case, the Veteran was provided with a VA examination in May 2015 in which the examiner noted a diagnosis of hypertension. Thus, the first element of Shedden is satisfied. During the April 2019 hearing, the Veteran's representative stated that service records show a history of at or above 160 over 100 readings. Service treatment records note multiple blood pressure readings, but none of these readings rise to the level of hypertension as defined by regulation (160/100). See 38 C.F.R. § 4.104, DC 7101. Specifically, an undated service treatment record after the Veteran had a motorcycle accident reflects a blood pressure reading of 132/80. On March 1972 separation examination, the blood pressure reading was 122/78. These records also contain no notation of an in-service diagnosis of hypertension or high blood pressure by a medical professional. During the May 2015 VA examination, the clinician noted that the Veteran reported he was diagnosed with high blood pressure in the early 2000s. The examiner opined that the Veteran's hypertension is less likely than not proximately due to or aggravated by the Veteran's service-connected PTSD or medications taken for PTSD. The clinician indicated that there was no evidence the Veteran was having significant problems with a mental condition at the time of his hypertension diagnosis in about 2003 or 2004. The clinician discussed the Veteran's medical history and stated that if one of the Veteran's medications had been causing or aggravating his hypertension, the primary care provider would most likely use an alternative medication. The examiner further noted no evidence found for aggravation and stated that the Veteran reported use of alcohol for many years. He explained that alcohol has a significant effect on blood pressure. As this opinion reflects thorough consideration of the Veteran's medical condition and history, the Board assigns a high degree of probative value to this opinion on the matter of causation and aggravation of hypertension by PTSD. In the June 2015 Notice of Disagreement (NOD), the Veteran's representative cited medical literature that supports a relationship between PTSD and cardiovascular disorders, to include hypertension. Further, in April 2019, the Veteran submitted medical literature which discussed a relationship between PTSD and cardiovascular disease. The Board notes that lay persons are not competent to opine on a medically complex matter such at this, for the reasons explained above. Further, the medical literature, does not discuss the Veteran's particular medical history, to include his personal risk factors, which must be considered when reaching a determination on a condition's etiology. This requires the education, training, and expertise of a medical professional who is qualified to offer a medical opinion on the matter. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Thus, the Board assigns little to no probative value to these lay statements or the medical research articles. In January 2021, VA obtained an additional medical opinion in which the clinician opined that the Veteran's condition was less likely than not related to his presumed exposure to herbicide agents. The clinician explained that the latest finding of the National Academy of Sciences changed the categorization of hypertension to "sufficient" evidence of an association in 2018 and that the previous classification was a "limited or suggestive" association. He noted that while this new finding indicates there is sufficient evidence of a positive association, the research had multiple limitations. He explained that a causal relationship was not concluded due to the effects of chance, bias, and confounding factors which could not be ruled out because the study was based on self-reports by Veterans. The clinician noted that review of the medical literature shows known risk factors including age, race, obesity, physical inactivity, hypercholesteremia, family history, tobacco use, diet, and alcohol use. As this opinion reflects thorough consideration of the medical literature and the Veteran's medical history, the Board assigns a high degree of probative value to this opinion. The January 2021 VA examiner also opined that the Veteran's condition was less likely than not proximately due to or the result of the Veteran's service-connected PTSD. He noted that research on PTSD and hypertension has shown an increased risk of hypertension with untreated PTSD. However, he noted that a causal link has not been established, and he noted the Veteran's risk factors for hypertension. The Board assigns a high degree of probative value to this opinion as it relates to whether service-connected PTSD caused hypertension. The January 2021 examiner also opined that it was less likely than not that hypertension was caused by the Veteran's service-connected erectile dysfunction. The examiner noted that there was no anatomic or pathophysiological basis for the etiology of the Veteran's hypertension to be caused by erectile dysfunction. The examiner noted that hypertension can cause erectile dysfunction, but the reverse had not been found in medical literature. The examiner also explained that there was no causal relationship between any of the Veteran's other service-connected conditions, including the medications used to treat the conditions. The Board places great weight of probative value on these opinions as they reflect full review of the record on appeal, medical literature, and the Veteran's medical history. In a further opinion, the January 2021 VA examiner addressed whether the Veteran's hypertension was aggravated by his prostate and bladder cancer. The examiner noted that the Veteran underwent chemotherapy treatments in mid-2017 for prostate and bladder cancer. For determining a baseline level of severity, the examiner noted that the record of blood pressure readings prior to 2017 were stable on a very low dose of anti-hypertensive medications. The examiner noted that at the time the Veteran underwent chemotherapy, his blood pressure was not controlled on prior doses of anti-hypertension medication and that his medications were increased on multiple occasions. The examiner noted that the current severity of hypertension was greater than the baseline severity and was at least as likely as not aggravated by the service-connected condition. The examiner further explained that the Veteran continued to be prescribed hypertension medications at the level they were increased to in 2017 until his death, and that this shows that there was an aggravation of hypertension beyond its natural progression due to the prostate and bladder cancers. The Board places high weight of probative value on this opinion as it reflects full review of the Veteran's medical history and a clear rationale for the conclusions reached. Accordingly, regarding direct service connection, the preponderance of the evidence of record is against a finding that the Veteran's hypertension was incurred in service, as there is no evidence of elevated blood pressure readings in service or an in-service diagnosis of hypertension, and no competent evidence of a relationship between the Veteran's service and his hypertension. Regarding presumptive service connection based on the Veteran's presumed exposure to herbicide agents, hypertension is not an enumerated disease entitled to presumptive service connection. 38 C.F.R. § 3.309(e). In considering whether direct service connection is warranted based on the Veteran's presumed exposure to herbicide agents, the Board places the greatest weight of probative value on the January 2021 opinion in this regard. As noted, this opinion considered the medical literature on this topic and determined based on the particular facts of the Veteran's case that hypertension was less likely than not related to his herbicide agent exposure. The Board finds that the Veteran's hypertension was not incurred in service or otherwise related to an in-service injury, disease, or event, to include his presumed exposure to herbicide agents. Further, regarding the chronic disease presumption for hypertension, the record does not reflect that hypertension manifested to a compensable degree within a year of separation. The Veteran was discharged from service in 1972 and the earliest indication of hypertension occurred in the early 2000s, which is many years after the Veteran's discharge from service. Consequently, the Veteran's hypertension did not manifest to a compensable degree within one year of discharge from service. Likewise, regarding continuity of symptomatology, signs or symptoms indicative of hypertension were not noted in service or in the presumptive period and there is no evidence of continuity of symptomatology after service. As noted, the Veteran indicated that he was not diagnosed with hypertension until the early 2000s. As such, service connection based on a continuity of symptomatology theory of entitlement is not warranted. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1339. Further, regarding secondary service connection, the evidence preponderates against a finding that the Veteran's hypertension was proximately due to a service-connected disability, to include PTSD. In this regard, the Board places the greatest weight of probative value on the January 2021 opinions as they are based on review of pertinent medical literature in conjunction with the Veteran's medical history. Finally, regarding secondary service connection on an aggravation theory of entitlement, the Board concludes that the evidence is at least in equipoise as to whether the Veteran's hypertension was aggravated by his service-connected prostate cancer and now service-connected bladder cancer. The Board finds that the January 2021 VA opinion is persuasive of a conclusion that these cancers aggravated the Veteran's hypertension. Therefore, the Board resolves any reasonable doubt in the appellant's favor and concludes that service connection for hypertension as aggravated by prostate cancer and bladder cancer is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. H. White, 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.