Citation Nr: 21066623 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 14-30 675 DATE: November 1, 2021 ORDER Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT Hypertension was not manifested in service or within a year following the Veteran's separation from active duty, and the preponderance of the evidence is against a finding that such disability is etiologically related to his service or was caused or aggravated by his service-connected PTSD. CONCLUSION OF LAW Service connection for hypertension is not warranted. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on (Federalized National Guard Service) active duty from May 1968 to December 1969, and had additional service in the Army National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2013 Department of Veterans Affairs (VA) rating decision. This matter was remanded in May 2018 [for VA treatment records and a medical opinion], February 2020 [for an addendum medical opinion], January 2021 [for VA treatment records and an addendum medical opinion], and June 2021 [for outstanding VA treatment records from 1974 to present and a copy of a private nexus opinion cited by the Veteran's representative in May 2021 written argument.] At the outset, the Board finds there has been substantial compliance with the May 2018, February 2020, January 2021, and June 2021 remand directives pertaining to the matters on appeal. Entitlement to service connection for hypertension, to include as secondary to service-connected PTSD, is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated in line of duty during active service. See 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disease first diagnosed after service may be service connected if all the evidence, including pertinent service records, establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases, to include hypertension, may be presumed to be service-connected if manifested to a compensable degree within a specified period postservice (one year for hypertension). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). Nexus of a chronic disease listed in § 3.309(a) to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, will be service connected. VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, and any increase in severity due to the natural progress, from the current level. 38 C.F.R. § 3.310(b). The Veteran contends that his hypertension was incurred in service, was caused by his exposure to herbicide agents in service, or caused or/and aggravated by his service-connected PTSD. His representative argues that the March 2012 VA examiner's opinion indicates that his PTSD may aggravate his hypertension. See March 2015 Informal Hearing Presentation. The Veteran's ACDUTRA and active-duty service treatment records (STRs) are silent for complaints, findings, treatment, or diagnosis of hypertension or hypertensive vascular disease. On December 1964 service enlistment examination, his blood pressure was 118/80, 120/82, 120/80 sitting, lying down, and standing, respectively. On September 1965 separation examination, his blood pressure was 104/60. On December 1969 separation examination, his blood pressure was 130/90. In September 1968 and December 1969 reports of medical history, he reported that his father had heart trouble. On his December 1964, September 1968, December 1969 reports of medical history, he denied having a history of palpitation or pounding heart, or high blood pressure. An August 2006 VA treatment record shows elevated blood pressure, and a notation that the Veteran's sister has a diagnosis of hypertension. A July 2009 VA treatment record notes that the Veteran's mother had hypertension, that his blood pressure was 160/90, and that he has a diagnosis of hypertension. On a May 2011 VA Authorization and Consent to Release Information, the Veteran stated that he received no private treatment and only visited JB medical center. See also September 2011 Statement in Support of Claim. In December 2011 correspondence, the Veteran stated that his high blood pressure was caused by his service in Vietnam. He related that he took two salt tablets daily in Vietnam, faced high anxiety while serving in Vietnam, and experiences high anxiety today that he attributes to his Vietnam service. He reported he did not have a family history of hypertension. On March 2012 VA examination, the Veteran reported a 1974 or 1975 diagnosis of hypertension. He stated he did not have hypertension before or during service. He reported he was taking medication for hypertension. The examiner noted March 2012 blood pressure readings of 164/100, 171/108, and 159/103 which supported the diagnosis of hypertension. The examiner opined the hypertension is less likely than not proximately due to or the result of his PTSD, as PTSD might aggravate hypertension, but not cause it. VA sent an April 2014 development letter attempting to locate the 1974 and 1975 medical treatment records showing the original diagnosis of hypertension reported by the Veteran at his March 2012 VA examination. In an April 2013 statement, he identified 1972 and 1973 treatment at Long Beach VAMC. A May 2014 VA report of general information documents that there are no treatment records for the Veteran at that facility for the 1972 to 1973 time period. On the July 2014 VA Form 9, the Veteran stated that VA records from Long Beach VAMC will substantiate his hypertension claim. In July 2014 correspondence, the Veteran reported that his high blood pressure was caused by the heavy stress he experienced in Vietnam due to constant threats of being hurt or killed by small arms fire, rockets, and mortar attacks. He related that the four daily salt pills he took caused hypertension. He stated that he has no family history of high blood pressure, that his father lived to age 89, his mother lived to age 98, and no one in their families had high blood pressure. On January 2015 VA (PTSD) examination, the Veteran expressed his belief that his hypertension is secondary to his PTSD. On October 2019 VA examination, the examiner reviewed the record and noted the Veteran's contentions regarding taking salt pills inservice and his belief that his condition arose in service. The doctor opined that his hypertension is less likely than not incurred or caused by the claimed injury, event, or illness in service. The provider noted that STRs are silent for hypertension and the Veteran's blood pressure first became elevated around 1974/1975. The examiner addressed secondary service connection and opined that his hypertension is less likely than not related to his PTSD. The doctor noted his reported history and findings on the most recent medical examination, and stated that PTSD is not a known cause of hypertension. The examiner opined that hypertension was less likely than not aggravated beyond its natural progression by the Veteran's service-connected PTSD as the medical records do not demonstrate a worsening of hypertension over time; in support, the provider observed that the Veteran had been on the same medication for the hypertension since 2010, and his blood pressure readings remained stable. On March 2020 VA examination, the examining physician reviewed the record and opined that the Veteran's hypertension is less likely than not incurred in or caused by the claimed injury, event, or illness in service. The doctor noted the silence of STRs regarding hypertension, the Veteran's reported onset of hypertension around 1974, his non-Army chemical corps MOS, and a consensus of medical literature showing a negative nexus for the specifics of this Veteran. On February 2021 VA examination, the provider, a nurse practitioner, reviewed the record and opined that the Veteran's hypertension is less likely than not incurred in or caused by the claimed injury, event, or illness in service. She noted the silence in STRs regarding hypertension, recent herbicide studies, and the Veteran's self-reported development of hypertension around four years after his separation from active-duty service. She stated that recent studies that have shown an association with hypertension and veterans assigned to the Army Chemical Corps do not apply to this Veteran [as he served in artillery, not the Chemical Corps]. The prospect of exposure to TCDD from herbicide exposure is unlikely due to environmental dissipation of TCDD, little bioavailability, the properties of the herbicides, and the circumstances of application that occurred. Photochemical degradation of TCDD and limited bioavailability of any residual TCC present in soil or on vegetation suggest that dioxin concentrations in grounds troops who served in Vietnam would have been small and indistinguishable from background levels even if they had been in recently treated areas. Laboratory and field data reported in the literature provide compelling evidence on the fate and dislodgeability of herbicide and TCDD in the environment. This evidence of the environmental fate and poor bioavailability of TCDD from Agent Orange is consistent with the observation of little or no exposure in the veterans who served in Vietnam. Appreciable accumulation of TCDD in veterans would have required repeated long-term direct skin contact of the type experienced by Air Force ranch hand and Army Chemical Corps personnel who handled or otherwise had direct contact with liquid herbicide, not from incidental exposure under field conditions where Agent Orange had been sprayed. On February 2021 VA examination, the examiner opined that the Veteran's hypertension was less likely than not incurred in or caused by the claimed inservice injury, event, or illness. She noted the various causes and pathology of hypertension, and concluded the physiology of hypertension shows PTSD would not have aggravated his peripheral vascular system. In April 2021 correspondence, the Veteran objected to the March 2021 Supplemental Statement in the Case (SSOC). He noted that it states that his mother had high blood pressure and that boots on the ground faced limited exposure to herbicide agents. He responded that no one in his family has a history of high blood pressure and that individuals who served on the ground in Vietnam are presumed to have been exposed to herbicide agents. In a May 2021 statement, the Veteran's representative argued the most recent February 2020 VA examination is inadequate as the medical opinion did not mention the current VA regulation that has conceded that hypertension can be caused by any direct contact to Agent Orange regardless of the level of exposure the Veteran suffered in Vietnam. The representative stated that a private doctor diagnosed the Veteran's hypertension and indicated that exposure to Agent Orange may have caused it. The representative included a link to a National Center for Biotechnology Information (NCBI) research study showing comorbidities exist between hypertension and PTSD. It is not in dispute that the Veteran has hypertension. It is also not in dispute that the Veteran served in Vietnam and was exposed to herbicide agents/Agent Orange in the course of such service. However, hypertension is not shown to have been manifested in service; is not noted in postservice clinical records in the claims file prior to 2006; and the earliest postservice notation of hypertension is in an August 2006 VA treatment record (showing elevated blood pressure) more than thirty-six years after his discharge from active duty. The Board notes the Veteran's accounts that his hypertension became manifest in 1974/1975 and that he received treatment for it then at a VA facility in California. There has been extensive development for records of such treatment, but they could not be located. Regardless, assuming (strictly for purposes of this decision) that his accounts of such treatment are accurate, it places onset of the hypertension at 4 or 5 years after service (well beyond the one-year chronic disease presumptive period for hypertension). Accordingly, service connection for hypertension on the basis that it manifested as chronic in service, or on a chronic disease presumptive basis under 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a), or based on continuity is not warranted. In written argument, the Veteran's representative invokes the presumptive provisions of 38 U.S.C. § 1116, and citing an unspecified "regulation" appears to infer that VA has found that a presumption of service connection for hypertension based on exposure to Agent Orange in "boots on the ground" Veterans. The Board's review of 38 C.F.R. § 3.309(e), including the additions to the listed diseases added in 2021 did not find that hypertension has been added. Therefore, the presumptive provisions of 38 U.S.C. § 1116 do not apply, and service connection under those provisions is not warranted. Thus, while service connection for hypertension may still be established under a due to exposure to Agent Orange theory of entitlement, it must be with competent affirmative evidence that supports that theory. The analysis turns to whether considering the overall evidence, the record shows that the Veteran's hypertension was incurred in service, to include as due to exposure to herbicide agents, or was caused or aggravated by his service-connected PTSD (as argued regarding a secondary service connection theory of entitlement). Consulting October 2019, March 2020, and February 2021 VA providers have all opined that it is less likely than not that the claimed hypertension was incurred during, or caused by, the Veteran's military service, to include exposure to herbicide agents. Based on the Veteran's representative's statement that an outstanding private positive opinion existed, the Board remanded this matter in June 2021 to obtain it. However, the Veteran has not authorized VA to obtain his private treatment records or opinion by his private provider, and without such authorization VA is unable to seek such evidence. Nor has he submitted medical (as the etiology of hypertension is a medical question that requires medical expertise) evidence, such as a statement by his private physician indicating that his hypertension is related to exposure to herbicide agents in Vietnam. The representative cited to studies that support that there is a limited relationship between exposure to herbicide agents and development of hypertension. Such textual evidence gains probative value when it is applied to the specifics of a particular case by a medical professional. The citations to studies were not accompanied by any medical provider's opinion supporting the claim and citing to the study results in support of the opinion. The VA medical opinions of record, against the claim, cite to supporting factual data (such as that hypertension was not manifested in service or shown postservice until at least 4 years thereafter (per the Veteran's accounts) or decades thereafter (per documentation in the record). While the March 2012 VA provider's opinion was inadequate for rating purposes, later opinions addressed the deficiencies, are cumulatively probative and persuasive evidence in this matter. The February 2021 consulting provider addressed the specific study cited by the Veteran's representative, and noted that it involved Veterans who served in the Chemical Corps and had substantially greater potential risk for exposure to high levels of TCDD, and the findings did not apply to Veteran's who had a lower level of exposure to the harmful chemicals (such as the Veteran, who served in artillery). The provider also addressed the Veteran's allegation that his hypertension resulted from his taking salt pills in service, and explained that salt pills were provided for hypotension (low blood pressure) due to dehydration and do not cause hypertension. [The Board notes the Veteran's objection to an AOJ reference of a family history of hypertension and assertion that he does not have such history. The Board observes that the Veteran's early (2006 and 2009) VA treatment records note his reported history that his sister had a diagnosis of hypertension and his mother had hypertension.] Regardless, that reference is moot. While a VA consulting provider notes that family history is a risk factor for development of hypertension, the opinions against the claim do not rest on a conclusion that the Veteran's hypertension is due to his family history/genetic factors. The VA providers also addressed the secondary service connection theory of entitlement asserted. Regarding causation, the rationale provided cites to medical principles, explaining that the pathophysiology of hypertension does not suggest a basis by which PTSD would cause hypertension (and that there is no support in medical literature for such a causal connection. Regarding aggravation they again invoked medical principles, and also noted that an increase in severity of hypertension is not shown (as required by regulation stipulating that aggravation may not be conceded unless baseline level of hypertension before aggravation and level of severity of hypertension after aggravation must be established), as the Veteran's hypertension has remained stable and controlled with medication. Regarding the one opinion (in 2012) indicating that PTSD may aggravate hypertension, that opinion is stated in speculative terms, and therefore is lacking in probative value. Regarding the representative's reference to the NCBI research article noting co-morbidity, it is noteworthy that co-morbidity only establishes a temporal (not causal or aggravating) relationship. The February 2021 VA consulting provider also indicated there is no way for PTSD to aggravate the peripheral vascular system. As noted above, the Veteran is a layperson, and does not profess to have medical expertise; therefore, his own opinion regarding the etiology of his hypertension is not probative evidence in the matter. See Jandreau, 492 F.3d at 1372. He has not submitted a medical opinion in the matter of a nexus of a nexus between his hypertension and his service or his service-connected PTSD. The textual evidence he presented has been addressed by the VA opinions. Considering the foregoing, the Board finds that the preponderance of the evidence is against the claim of service connection for hypertension. Therefore, the appeal seeking service connection for hypertension must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lederman, Michael 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.