Citation Nr: 21068260 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 15-45 537 DATE: November 9, 2021 ORDER Service connection for hypertension, to include as secondary to service-connected coronary artery disease is denied. Service connection for a right kidney disorder, to include renal artery stenosis, renal artery atherosclerosis, and chronic kidney disease stage III, to include as secondary to service-connected coronary artery disease is denied. FINDINGS OF FACT 1. The Veteran's hypertension was not incurred in or caused by service. 2. The Veteran's hypertension was not caused or aggravated by service-connected coronary artery disease. 3. The Veteran's right kidney disorder was not caused by service. 4. The Veteran's right kidney disorder was not caused or aggravated by service-connected coronary artery disease. CONCLUSIONS OF LAW 1. The criteria to establish service connection for hypertension have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303(b), (d), 3.307(a)(3), 3.309(a), 3.310. 2. The criteria to establish service connection for right kidney disorder have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303(d), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from October 1966 to August 1968, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Atlanta, Georgia Regional Office (RO). In January 2019, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. In June 2021, the Board remanded the appeal to the RO for additional action. There was substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection shall be granted on a secondary basis under 38 C.F.R. § 3.310 where it is demonstrated that a service-connected disorder caused or aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Hypertension Hypertension is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a "continuity of symptoms" after service is required to establish service connection. 38 C.F.R. § 3.303(b). Additionally, as a chronic disease, hypertension will be considered to have been incurred in or aggravated by service if the disease becomes manifest to a compensable degree within one year from the date of service separation. 38 C.F.R. § 3.307(a)(3). Continuity of symptomatology may be established by (1) a condition "noted" during service; (2) evidence of post service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and post service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). If the condition was one as to which a lay person's observation is competent, medical evidence of "noting" is not necessarily required. Id. The Veteran asserts that his hypertension was caused by exposure to Agent Orange during his service in the Republic of Vietnam, or alternatively, as secondary to service-connected coronary artery disease. The disputed issue is nexus. The claim will be denied on a theory of direct service connection, secondary service connection, and presumptive service connection as to chronicity and continuity of symptomatology. Military personnel records (MPRs) show that the Veteran served in the Republic of Vietnam from August 1967 to August 1968. Under the law, the Veteran is presumed exposed to herbicide agents, to include Agent Orange; however, hypertension is not listed as a disease associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). Therefore, presumptive service connection under § 3.309(e) is not warranted. Service treatment records (STRs) do not show complaints or contemporaneous reports pertaining to high or low blood pressure. In his August 1968 separation medical history report, the Veteran answered "no" to the question of whether he then had, or once had high or low blood pressure. In the Veteran's August 1968 separation medical examination report, the examiner noted no abnormalities pertaining to hypertension and the Veteran's blood pressure reading was 110 systolic/80 diastolic. The STRs are highly probative evidence because they were generated with the specific view of recording the events they describe. In this respect, they are akin to official records, which generally enjoy a high degree of probative value in the law. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision). An October 1996 non-VA treatment record noted a prior medical history of hypertension and the Veteran's blood pressure readings were 128/72, 136/94, 116/76, and 129/75. A November 1996 non-VA treatment record reflects a diagnosis of controlled hypertension. A May 1997 non-VA treatment record reflects blood pressure readings of 130/88 and 120/90. An August 2007 non-VA treatment record reflects the Veteran's diagnosis of hypertension and a blood pressure reading of 140/90. A May 2008 non-VA treatment record reflects a diagnosis of hypertension and accelerated hypertension with blood pressure readings of 145/84, 160/90, and 190/100. An August 2008 non-VA treatment record reflects a diagnosis of renovascular hypertension. A February 2010 non-VA treatment record reflects a blood pressure reading of 146/80. A May 2011 VA examination revealed blood pressure readings of 170/84, 200/94, 142/74, 140/82, and 140/76. The April 2012 VA examiner diagnosed the Veteran with hypertension and noted 1991 as the initial year of diagnosis. The Veteran's blood pressure readings were 140/82, 136/80, and 138/82. In April 2019, the Board found the April 2012 VA negative etiology opinion inadequate and remanded the claim for an adequate opinion. The April 2012 VA negative etiology opinion is therefore of low probative value. A December 2013 non-VA treatment record reflects the Veteran's diagnosis of benign essential hypertension. In his January 2019 Board hearing, the Veteran reasserted that his hypertension was caused by exposure to Agent Orange, or alternatively, as secondary to service-connected coronary artery disease. In a January 2019 letter, a non-VA examiner indicated treating the Veteran for essential hypertension; however, no etiology opinion was provided. The Veteran is not competent, as a lay-person, to provide a medical opinion as to the cause or aggravation of his hypertension. 38 C.F.R. § 3.159(a)(1); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The January 2020 VA examiner opined that the Veteran's hypertension was not caused by exposure to Agent Orange because STRs did not show hypertension, the Veteran's blood pressure at separation was normal, the Veteran was diagnosed with hypertension approximately 23 years post-service, and the medical literature did not show evidence of a direct etiological link between Agent Orange exposure and hypertension. The examiner noted that hypertension resulted from multiple causes such as genetic predisposition, excess dietary salt intake, and adrenergic tone. The January 2020 VA negative etiology opinion as to direct service connection is highly probative because the examiner had an accurate and complete understanding of the Veteran's medical history and provided a medical conclusion with sufficient rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In an April 2021 brief, the Veteran's representative submitted a March 2002 article titled "Hypertension and Coronary Artery Disease" in support of secondary service connection. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1); Wallin v. West, 11 Vet. App. 509, 514 (1998). However, the article concerns hypertension as a risk factor for coronary artery disease and does not address whether coronary artery disease can cause and/or aggravate hypertension as evidenced by the article noting "[h]ypertension induced endothelial dysfunction, exacerbates the atherosclerotic process and it contributes to make the atherosclerotic plaque more unstable. Left ventricular hypertrophy, the usual complication of hypertension, promotes a decrease of coronary reserve." Therefore, the article is of low probative value. In the June 2021 addendum, the VA examiner opined that the Veteran's hypertension was not caused by service-connected coronary artery disease because coronary artery disease involves narrowing of the heart arteries and hypertension involves peripheral vasculature, therefore, narrowing of the coronary arteries centrally does not cause narrowing of the peripheral nerves distally. The examiner opined that the Veteran's hypertension was not aggravated by service-connected coronary artery disease because hypertension is a risk factor for coronary artery disease and narrowing of the coronary arteries does not result in narrowing of the peripheral arteries, Additionally, the examiner indicated that the Veteran's article pertains to a reverse relationship with hypertension as a risk factor for coronary artery disease. The June 2021 VA addendum as to secondary service connection is highly probative. Nieves-Rodriguez, 22 Vet. App. at 295. A preponderance of the evidence is against a finding that the Veteran's hypertension was incurred in-service, caused by exposure to Agent Orange, or secondary to service-connected coronary artery disease. As to chronicity and continuity of symptomatology, there was no combination of manifestations sufficient to identify hypertension during service and hypertension was not noted during service as evidenced by STRs not showing any complaints or contemporaneous reports pertaining to high or low blood pressure, the Veteran answered "no" to the question of whether he then had, or once had high or low blood pressure at service separation, the service medical examiner noted no abnormalities pertaining to hypertension at separation, and the Veteran's initial diagnosis of hypertension in 1991. The January 2020 VA examiner opined that the Veteran's hypertension was not caused by exposure to Agent Orange. The June 2021 VA examiner opined that the Veteran's hypertension was not caused or aggravated by service-connected coronary artery disease. Significantly, no competent medical provider has opined otherwise. Therefore, service connection is not warranted and the claim is denied. Right kidney disorder The Veteran asserts that his right kidney disorder was caused by exposure to Agent Orange, or alternatively, as secondary to service-connected coronary artery disease. The issue as to in an in-service event, injury, or disease and current disability is not disputed. The disputed issue is nexus. The claim will be denied on a theory of direct service connection and secondary service connection. The Veteran's right kidney disorders are not listed as chronic diseases. 38 C.F.R. § 3.309(a). As noted, the Veteran is presumed exposed to Agent Orange during service in the Republic of Vietnam. However, the Veteran's right kidney disorders are not listed as diseases associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). Therefore, presumptive service connection under the applicable regulations is not warranted. STRs do not show complaints or contemporaneous reports concerning the Veteran's right kidney. In his August 1968 separation medical history report, the Veteran did not report kidney trouble. In the Veteran's August 1968 separation medical examination report, no genitourinary abnormalities were noted. The STRs are highly probative. Rucker, 10 Vet. App. at 73. An October 2007 non-VA renal artery duplex testing revealed no presence of significant stenosis and no evidence of hemodynamically significant renal artery stenosis. An April 2008 non-VA renal artery duplex testing revealed elevated velocities in the origin and proximal right renal artery suggesting hemodynamically significant stenosis. A non-VA treatment record dated May 13, 2008 reflects the Veteran's report of right abdominal and flank pain for approximately 18 hours after undergoing a right renal artery stenosis angioplasty and stenting on May 2, 2008. A duplex examination revealed right radial artery occlusion and no kidney flow. The Veteran was diagnosed with acute renal failure "most likely secondary to renal artery occlusion/ongoing renal infraction." A July 2008 non-VA renal artery duplex testing revealed an occluded right renal artery and normal kidney perfusion. In non-VA treatment records dated July 2008 to November 2008, the Veteran underwent treatment for chronic renal failure. A renal scan revealed "no function in the right kidney" and the Veteran was assessed with right renal artery stenosis status-post stenting and unsuccessful re-stenting. A February 2010 non-VA renal artery duplex testing revealed an occluded right renal artery. The April 2012 VA examiner diagnosed the Veteran with renal artery stenosis status-post renal artery stent placement. In April 2019, the Board found the April 2012 VA negative etiology opinion inadequate and remanded the claim for an adequate opinion. The April 2012 VA negative etiology opinion is therefore of low probative value. A June 2013 non-VA treatment record reflects the Veteran's diagnosis of renal artery atherosclerosis. In his January 2019 Board hearing, the Veteran reasserted that his right kidney disorder was caused by exposure to Agent Orange, or alternatively, as secondary to service-connected coronary artery disease. The Veteran is not competent, as a lay-person, to provide a medical opinion as to the cause or aggravation of his right kidney disorder. 38 C.F.R. § 3.159(a)(1); Jandreau, 492 F.3d at 1372. In a January 2019 letter, a non-VA examiner indicated treating the Veteran for chronic kidney disease stage III and multiple renal artery stenosis; however, no etiology opinion was provided. A June 2019 non-VA treatment record reflects the Veteran's diagnosis of chronic kidney disease stage III. The January 2020 VA examiner provided a negative etiology opinion as to the Veteran's right kidney disorder. However, in April 2019, the Board found the January 2020 VA negative etiology opinion inadequate and remanded the claim for an adequate opinion. The January 2020 VA negative etiology opinion is therefore of low probative value. In the April 2021 brief, the Veteran's representative submitted a September 2016 article titled "Renal artery stenosis in seniors: Causes, symptoms, and treatment" in support of secondary service connection. As noted, medical treatise evidence can, in some circumstances, constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1); Wallin, 11 Vet. App. at 514. The Veteran's representative argues that based on the article, "it is entirely reasonable to conclude that undiagnosed hypertension lurked somewhere in the Veteran's in-service medical history and later evolved into the coronary artery disease that the Veteran is now service-connected for." The article defines renal artery stenosis and lists the causes, symptoms, and treatment of renal artery stenosis. There is no basis to conclude from the article, as the Veteran's representative argues, that the Veteran's "undiagnosed hypertension lurked somewhere ... and later evolved into coronary artery disease" because the article indicates that high blood pressure results from renal artery stenosis and treatment-resistant heart failure is a symptom of renal artery stenosis. The article is therefore of low probative value. In the June 2021 VA addendum, the examiner opined that the Veteran's right kidney disorder was not caused by exposure to Agent Orange because STRs are silent as to any kidney disorders, the medical literature does not show evidence of a direct link between herbicide agents and the Veteran's kidney disorders, and the Veteran was diagnosed with a right kidney disorder approximately 40 years post-service. The examiner opined that the Veteran's right kidney disorders were not caused by service-connected coronary artery disease because renal artery stenosis is commonly caused by atherosclerosis a process in which plaque made of fats, cholesterol, and other compounds builds up. The examiner noted risk factors for renal artery stenosis includes old age, hyperlipidemia, and history of tobacco use and that atherosclerosis is a diffuse process that affects the main arteries. Additionally, the examiner indicated there is no scientific evidence of an association between the heart arteries causing renal artery disease. The examiner opined that the Veteran's right kidney disorders were not aggravated by service-connected coronary artery disease because the Veteran's chronic kidney disease was due to hypertension and renal artery stenosis. The examiner noted that the Veteran's renal artery stenosis resulted from atherosclerosis and that there is no scientific evidence of an association between the heart arteries aggravating renal artery disease. Additionally, the examiner opined that the Veteran's article does not show an etiological association between coronary artery disease and the Veteran's right kidney disorders. The June 2021 VA addendum as to direct and secondary service connection is highly probative. Nieves-Rodriguez, 22 Vet. App. at 295. A preponderance of the evidence is against a finding that the Veteran's right kidney disorder was caused by exposure to Agent Orange or secondary to service-connected coronary artery disease. The June 2021 VA examiner opined that the Veteran's right kidney disorder was not caused by exposure to Agent Orange. (CONTINUED ON THE NEXT PAGE) Additionally, the June 2021 VA examiner opined that the Veteran's right kidney disorder was not caused or aggravated by service-connected coronary artery disease. Significantly, no competent medical provider has opined otherwise. Therefore, service connection is not warranted and the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Cohen, Counsel The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.