Citation Nr: 21068815 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 15-40 772 DATE: November 15, 2021 ORDER Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents and/or as secondary to service connected end stage renal disease, is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for total disability due to individual unemployability based upon service-connected disorders (TDIU) is remanded. FINDING OF FACT The Veteran's hypertension did not manifest during service or within one year after separation from service, was not related to active service to include exposure to herbicide agents and was not caused or aggravated by service connected end stage renal disease. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Air Force from November 1966 to November 1967. This includes verified service within the Republic of Vietnam. The Veteran died in November 2016. The appellant is his surviving spouse and the substitute claimant. This appeal comes before the Board of Veterans' Appeals (Board) on appeal of separate rating decisions dated August 6, 2013 and March 31, 2014. The appellant, her attorney, and her other son as witness testified before the undersigned Veterans Law Judge on November 16, 2020. A transcript of this hearing has been produced and associated with the claims file. In February 2021, the Board remanded the instant matters to the agency of original jurisdiction (AOJ) for additional development. Specifically, the Board instructed that a VA etiology opinion be obtained with regards to the claimed hypertension. Such an opinion was obtained in September 2021. The Board therefore determines that there has been substantial compliance as to the claim for service connection for hypertension with its previous remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal is advanced on the Board's docket on account of the appellant's advanced age. 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents and/or as secondary to service connected end stage renal disease, is denied. The appellant contends that the Veteran's hypertension is the result of his exposure to herbicide agents. In the alternative, the appellant contends that the Veteran's hypertension was caused or aggravated by his end stage renal disease. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service 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 may be granted on a secondary basis for disability that is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. For secondary service connection to be granted, generally there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). A veteran, who, during active military service, served in the Republic of Vietnam during a period beginning in March 1971, is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service in the Republic of Vietnam includes service both on the landmass of Vietnam and the waters that are no more than 12 miles offshore of Vietnam. 38 U.S.C. § 1116A(a). If a veteran was exposed to Agent Orange during active military, naval, or air service, certain diseases, are presumptively service connected. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). The Veteran's exposure to herbicide agents has been conceded. If a veteran was exposed to an herbicide agent, such as Agent Orange, during active service, service connection will be presumed for certain diseases, including ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease), if they become manifest to a degree of 10 percent or more at any time after service. 38 U.S.C.. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). However, hypertension is not one of those diseases for which service connection will be presumed. Notwithstanding the presumption, service connection for a disability claimed as due to exposure to herbicides may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113(b) and 1116 and 38 C.F.R. § 3.303. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology 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). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Hypertension is a chronic disease. If entitlement to service connection is not established on any of the presumptive bases noted above, a veteran is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service treatment records are negative for complaints, treatments or diagnoses related to hypertension. The Board has first considered whether service connection is warranted on a presumptive basis. However, the clinical evidence of record fails to show that the Veteran manifested hypertension to a degree of 10 percent within the one year following his discharge from service in November 1967. Post-service treatment records demonstrate that the Veteran appears to have been diagnosed with hypertension no later than July 27, 2016. See VA Treatment Record (Nephrology Note) by A.D.A. ( July 27, 2016 ) ("Diagnosis: end stage renal disease attributed to hypertension on dialysis with kidney care in [name of city], [names of two doctors]"). As such, presumptive service connection is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. With regards to direct service connection, a September 2021 VA examiner opined that the Veteran's hypertension was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness to include Agent Orange exposure. The examiner reasoned that there was no evidence of hypertension while in service and that his blood pressure at the time of the separation examination was well within normal limits at 104/60. The examiner noted that the precise date of diagnosis is not available in the records but appears to have been decades post-service. The examiner noted that Agent Orange has not been established as the cause of hypertension, that a National Academy of Sciences (NAS) study in 2018 suggested an association without establishing a cause and that the current, widely accepted, peer-reviewed literature has not established Agent Orange as a cause of hypertension. The examiner noted that a review of the literature, including Up-To-Date, a respected professional medical resource wherein one may access current professional treatises and studies, fails to return articles confirming Agent Orange as a cause of hypertension. With regards to secondary service connection, a September 2021 VA examiner opined that the Veteran's hypertension was less likely than not due to his end-stage renal disease and was not aggravated beyond its natural course due to any cause, including the Veteran's end-stage renal disease. The examiner noted that the Veteran's acute renal failure arose in May 2010 as post-gastroenteritis glomerulonephritis, that the Veteran's blood pressure on May 9, 2011 was 126/81, and that there was no documented date of onset of hypertension but there is no indication that the Veteran's hypertension was due to the renal condition. The examiner noted that the Veteran's blood pressure on December 13, 2014 was 129/69 and in November 2016 it was 124/82, that there is no indication of aggravation beyond the natural course and no indication that the glomerulonephritis/renal failure caused by the Veteran's high blood pressure. The examiner found that there is no objective evidence of aggravation beyond its natural course, that adjustments in dosage or medications do not constitute aggravation but are consistent with the natural course of essential hypertension and that there appears to be no significant worsening of the Veteran's blood pressure through November 2016. The examiner noted that there is more likely than not that the condition arose naturally and represents essential hypertension. The VA opinion addressed each theory of entitlement, including direct and secondary, and explained the reasons for their conclusions based on an accurate characterization of the evidence of record. The September 2021 opinion is therefore entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no contrary etiology opinion. The Board notes that the appellant's representative submitted a journal article regarding the hypertension risk in Army Chemical Corps veterans who sprayed defoliant in Vietnam. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. §§ 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). However, treatise evidence must "not simply provide speculative generic statements not relevant to the [claimant]'s claim." Wallin v. West, 11 Vet. App. 509, 514 (1998). Instead, the treatise evidence, "standing alone," must discuss "generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Id. (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (medical treatise evidence must demonstrate connection between service incurrence and present injury or condition); Beausoleil v. Brown, 8 Vet. App. 459, 463(1996) (generic statement about the possibility of a link between chest trauma and restrictive lung disease is too general and inconclusive); Mattern v. West, 12 Vet. App. 222, 227 (1999) (generally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise is too general and inconclusive (quoting Sacks, supra)). In this case, the article submitted by the appellant's representative provided only general information as to the hypertension risk in Army Chemical Corps veterans who sprayed defoliant in Vietnam. The Board notes that the Veteran's DD Form 214 indicates that he served in the Air Force as an intelligence operations specialist; there is otherwise no evidence in the record that the Veteran served in the Army Chemical Corps or that he sprayed defoliant in Vietnam. Moreover, such article is not accompanied by any corresponding clinical evidence specific to the Veteran and does not suggest a generic relationship between the Veteran's hypertension and service with a degree of certainty such that, under the facts of this specific case, reflects plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. As such, the Board finds this information to not be relevant as to the matter for consideration and, therefore, is not probative to this case. Wallin, supra; Sacks, supra. The Veteran and the appellant have asserted that the Veteran's hypertension was incurred in service as a result of being exposed to herbicide agents while serving in Vietnam. In the alterative, they asserts that it was caused or aggravated by his end-stage renal disease. Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. However, an opinion as to whether there is a link between the Veteran's claimed hypertension and service, including due to exposure to herbicide agents and/or service connected end stage renal disease, where there is no evidence of any hypertension for many years after service, is one requiring specialized knowledge and testing to understand the complex nature of the body systems. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007) (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer). Neither the Veteran nor the appellant indicated that the Veteran has such experience, thus, their opinions on the question of nexus is not competent evidence. There is a probative medical opinion against the claim and no medical opinions or competent lay statements in support of the claim. As there is no other evidence of a relationship between the Veteran's hypertension and service and/or end stage renal disease, the preponderance of the evidence is against a finding that the Veteran's claimed hypertension had its onset in service or within the first post-service year, that it is otherwise related to service or due to exposure to herbicide agents and/or that it is caused or aggravated by service connected end stage renal disease. Therefore, the benefit-of-the-doubt doctrine is not for application, and service connection for hypertension is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. The Veteran's claims file was most recently forwarded to an examiner in September 2021, see VA Exam ( Sept. 1, 2021 ), who concluded that "There is no new evidence to reverse decision of 2013." The examiner noted that the Veteran's service treatment records indicate normal hearing at entrance in 1966 and separation in 1967 with no significant permanent shift in hearing threshold greater than normal measurement variability. However, the examiner did not provide an adequate explanation as to why a lack of significant hearing threshold shifts is clinically significant to preclude a finding of entitlement to service connection. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board additionally notes that in the Veteran's final in-service audiogram in November 1967, while auditory thresholds were recorded, it is unclear whether they were recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units. On remand, the examiner will be requested to state whether analysis of audiograms in ASA units or ISO-ANSI units would affect a conclusion. 3. Entitlement to service connection for a TDIU is remanded. As the Board has granted the Veteran's claim for service connection for hypertension but remanded the claims for service connection for hearing loss and tinnitus, adjudication of entitlement to TDIU is deferred. The matters are REMANDED for the following action: 1. Obtain an addendum VA etiology opinion from an appropriate medical professional to ascertain the nature and etiology of the Veteran's claimed bilateral hearing loss and tinnitus. All pertinent evidence of record must be made available to and reviewed by the examiner. The examiner must review the claims file and note that review in the examination report. The examiner is asked to furnish an opinion with respect to the following questions: Is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss and/or tinnitus had its onset during any period of service or is otherwise related to such period of service? The examiner should specifically consider the Veteran's reports of hazardous noise exposure from a rocket attack in Vietnam. The examiner should specifically address the significance, if any, of in-service threshold shifts. The examiner should also consider all in-service audiograms conducted in 1967 under ASA and ISO-ANSI units. An explanation as to whether a conclusion would be different in ISO-ANSI units instead of in ASA units would be helpful. The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (Continued on the next page) 2. Then, readjudicate the appeals of the remaining claims for service connection for bilateral hearing loss and tinnitus, and only then readjudicate the Veteran's claim for a TDIU. If any portion of these claims is not granted in full, then issue a Supplemental Statement of the Case (SSOC) to the appellant and her attorney and follow all other applicable appellate procedures. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.