Citation Nr: 21068493 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 15-10 691 DATE: November 10, 2021 ORDER Entitlement to service connection for hypertension, to include as due to herbicide exposure or secondary to service-connected disabilities, is denied. FINDING OF FACT The most probative evidence of record shows the Veteran's hypertension is not etiologically related to service, or secondary to any of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension have not been met. 8 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty during the Vietnam Era, from December 1965 to December 1967, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board finds substantial compliance has been made with the prior remand directives, as an adequate VA examination has been obtained in September 2021. See Stegall v. West, 11 Vet. App. 268, 271 (1998). While the Board acknowledges the Veteran's argument contained in his substantive appealthat the July 2013 VA examiner did not indicate that he conducted a review of any private physician records in furnishing a medical nexus opinionto the extent that this served as a partial basis for a Board remand and the Veteran was subsequently afforded new VA examinations, the Board finds no pending issues associated with such contention. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with respect to the hypertension claim being decided at this time. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is a balance of positive and negative evidence regarding any material issue, the benefit of the doubt shall be given to the claimant. See 38 U.S.C. § 5107 (b). Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. See 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting its decisions, there is no requirement that the Board discuss every piece of evidence in the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claim on appeal. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 1131; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (1) the existence of a present disability; (2) 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. Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be considered on a secondary basis pursuant to 38 C.F.R. § 3.310. The evidence must demonstrate an etiological relationship between a service-connected disability and the condition said to be proximately due to or the result of the service-connected disability. See Buckley v. West, 12 Vet. App. 76, 84 (1998). Secondary service-connection may also be warranted for a nonservice-connected disability when that disability is aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). VA has identified diseases associated with exposure to certain herbicide agents (e.g. Agent Orange) during the Vietnam era that will be considered to have been incurred in service. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.309 (e). Veterans who served in Vietnam will be presumed to have been exposed to one of the relevant herbicide agents (e.g. Agent Orange). See 38 U.S.C. § 1116 (f) (there is a rebuttable presumption of herbicide exposure in the case of veterans who served in Vietnam); see also 38 C.F.R. § 3.307(a)(6)(iii) and 38 C.F.R. § 3.309(e). The Veteran contends that his current hypertension is related to Agent Orange exposure while serving in Vietnam from 1966-1967 and further notes that he served in combat in Vietnam. Alternatively, he believes his hypertension is secondary to his service-connected PTSD or coronary artery disease (CAD). He indicated that he was first diagnosed with hypertension during a routine doctor's visit post-service, in which his blood pressure was found to be dangerously high and was sent immediately to the emergency room and started on hypertension medication. He also indicates that he continuously takes daily medications to manage his symptoms. The Veteran's service records show that he served in the Republic of Vietnam and thus, his herbicide exposure is presumed. To date, hypertension is not an enumerated disability entitled to presumptive service connection based on exposure to herbicide agents under 38 C.F.R. § § 3.309 (e). Nonetheless, under Combee, service connection may still be awarded based on that exposure on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). It is not in question that the Veteran has a current disability, as he has been diagnosed with hypertension during the appeal period. The Veteran's service treatment records are silent as to any complaints, treatment, or diagnosis relating to hypertension. Blood pressure readings conducted throughout service shows normal findings, and his November 1967 separation examination also documents a normal blood pressure reading (115/76). For certain chronic diseases, such as hypertension (as a precursor to cardiovascular-renal disease), a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. See 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). The disease does not have to be diagnosed within the presumptive period, but it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. See 38 C.F.R. §§ 3.303 (b), 3.307. However, the Board finds the Veteran's hypertension is not presumed causally related to service as a chronic disease. Evidence does not show, and the Veteran does not contend, that his hypertension was noted as chronic in service, or that it manifested to a compensable degree within one year after his separation from service. Moreover, the Veteran has not alleged continuous symptomatology since service, but has indicated that he was first diagnosed with hypertension many years post-service (ie. in 2004), and that his first treatment for hypertension was in 2007 when he had a heart attack. His private treatment records also document new onset of hypertension in March 2004 (even though there is a suggestion that the Veteran was first diagnosed with hypertension prior to 2004 (ie. 1998), the Board notes that 1998 is already over 30 years after separating from service). Although the Board acknowledges the Veteran's contention that he continuously takes daily medications for managing his symptoms, the Veteran has not otherwise alleged that he has been experiencing any symptoms/started taking medications continuously since separating from service. The Board finds that the weight of the lay and medical evidence is against finding that symptoms of hypertension were continuous after service separation or that symptoms began to manifest to a compensable degree within one year of service separation. Turning to the medical evidence of record, although the Veteran underwent multiple VA examinations for his hypertension conditionJuly 2013, January 2020, May 2021, but as noted previously, these examinations/nexus opinions were all found to be at least partially inadequate. With regards to July 2013 VA examination, a possible failure to consider the Veteran's private treatment records in furnishing a negative nexus opinion was noted. Regarding the January 2020 VA examination, the examiner failed to provide an opinion as to secondary causation, the direct service connection opinion was speculative in nature and at odds with another claim that was also based upon presumptive herbicide exposure, and the secondary aggravation opinion was conclusory in nature and seemingly based exclusively upon the absence of treatment records, without taking into consideration the Veteran's reports of symptoms and history. Last but not least, the Board noted that the May 2021 VA examiner failed to provide an opinion regarding secondary service connection based on service-connected PTSD and further found the provided nexus opinion as speculative in nature and at odds with an earlier examination's findings. Thus, in July 2021, the Board remanded for a new VA examination/medical nexus opinion. A new VA examination/medical nexus opinion was obtained in September 2021, during which time the Veteran was diagnosed with essential hypertension. First, with regards to a direct service connection opinion, even after acknowledging that "Agent Orange issue is controversial and not settled," and that "there is a statistical association suggesting a correlation," the examiner clarified that "correlation is not causation," in ultimately concluding that the Veteran's claimed hypertension condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, to include his Agent Orange exposure in service. With regards to secondary service connection opinion, the examiner indicated that the Veteran has "essential hypertension, which by definition is not secondary or caused by other disease"; in other words, essential hypertension cannot be caused by any other medical condition such as his service-connected disabilities, to include his service-connected PTSD/CAD. As for aggravation aspect of secondary service connection, the examiner indicated that there has been no progression of the Veteran's hypertension, as there is no evidence of end organ damage; instead, the examiner stated that the Veteran's condition is now relatively controlled and has not worsened. In order for there to be aggravation, there must be worsening of the condition, and the examiner clearly stated there is none here. The Board assigns the most probative value to this opinion, as this was furnished after considering all pertinent records, to include his private treatment records, substantiated by concrete factual findings. The Board acknowledges the statement provided by the Veteran (that his hypertension is related to his Agent Orange exposure in service, or alternatively, secondary to his service-connected disabilities), and that provided by his son-in-law (relaying his belief that the Veteran's hypertension was caused by in-service herbicide exposure, explaining that the Veteran maintained an active lifestyle, took care of himself, maintained a healthy weight, avoided damaging habits such as smoking and drinking). See June 2012 lay statements. However, neither states, nor the record reflects, that they have any medical education, experience, or training, nor have they offered any basis in common lay knowledge to support their opinions. While a lay witness is competent to report any symptoms, personal observations or recollections, he is not competent to provide a medical opinion linking that symptom with hypertension. Opinions regarding etiology of hypertension are complex and generally beyond the competency of a lay witness. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, at least with regards to the aspect of establishing medical etiology/nexus, the Board does not assign any probative value to these statements. In summary, the preponderance of the evidence is against finding that the Veteran's hypertension was caused by his in-service agent orange exposure or any other in-service disease or injury, nor is it caused or aggravated by his diabetes. The criteria for service connection for hypertension are not met and the appeal must be denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee, Catherine 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.