Citation Nr: 21069015 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 15-32 746 DATE: November 17, 2021 ORDER Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus type II and/or herbicide agent exposure, is denied. FINDINGS OF FACT 1. The Veteran served in Vietnam during the Vietnam War and is presumed to have been exposed to herbicide agents, such as Agent Orange. 2. The Veteran's hypertension neither began during or was otherwise caused by his military service, to include any exposures therein, and was neither caused nor aggravated by his service-connected diabetes. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension, to include as secondary to diabetes mellitus type II and/or herbicide agent exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1968 to April 1970, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a September 2018 decision, the Board denied entitlement to service connection for hypertension. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In a July 2019 Joint Motion for Remand (JMR), which was signed by the Court in August 2019, the Court vacated the Board's decision and remanded the issue. Subsequently, this matter was remanded by the Board to the Agency of Original Jurisdiction (AOJ) for additional development in October 2019 and January 2021. Most recently, the Veteran's claim was remanded specifically to ensure that adequate steps were taken to obtain federal Department of Transportation (DOT) records. In this regard, the AOJ contacted the DOT in January 2021, February 2021, and May 2021, requesting the Veteran's records. After receiving no response from the DOT, in June 2021, the AOJ sent a letter to the Veteran, informing him that it determined that the records cannot be located and therefore are unavailable for review. To date, neither the Veteran nor his representative has responded. While VA must make as many requests as necessary to obtain relevant records from a Federal department or agency, the Board is satisfied with their determination that further efforts to obtain the records would be futile and adequately informed the Veteran of such. 38 C.F.R. § 3.159. Accordingly, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may be established on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. 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 Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for hypertension The Veteran contends that his hypertension was caused or aggravated by his service-connected diabetes. Alternatively, the Veteran has contended that his hypertension condition was directly caused by his in-service exposure to herbicides. In regard to secondary service connection, the Board notes that service connection for diabetes mellitus is in effect. Thus, the question for the Board is whether the Veteran has a current disability that is proximately due to or the result of or was aggravated beyond its natural progress by the service-connected diabetes mellitus. The Board concludes that, while the Veteran has a current diagnosis of hypertension, the preponderance of the evidence is against finding that the Veteran's hypertension is proximately due to, the result of, or aggravated beyond its natural progression by service-connected diabetes. 38 U.S.C. § 1110; 38 C.F.R. § 3.310 (a). The Veteran reportedly was diagnosed with hypertension in 2003, and diabetes three years prior. In December 2010, a VA examiner found that the Veteran's hypertension was not due to diabetes mellitus, as there was no renal disease. Additionally, a September 2012 VA examination report also shows the Veteran's hypertension was not caused by diabetes, as there was no renal disease. An April 2013 VA examination report noted that the Veteran's hypertension that pre-existed his diabetes was less likely than not aggravated beyond its normal progression by diabetes type 2. The rationale was that the hypertension did not involve microalbuminuria of diabetic nephropathy at baseline diagnosis of diabetes mellitus. The Veteran had a longstanding history of stable hypertension without current evidence of diabetic nephropathy by microalbuminuria. The examiner found that there was no pathology to support that the Veteran's hypertension was aggravated beyond its natural progression by diabetes. Furthermore, in December 2019, a VA examiner noted that the Veteran's treatment records do not show nephropathy or an increase of microalbuminuria and found that the Veteran's severity of diabetes does not relate to his hypertension. In light of the aforementioned, the probative and persuasive evidence does not show that the Veteran's hypertension is proximately due to, the result of, or aggravated beyond its natural progression by service-connected diabetes. In regard to service connection on a direct basis, the Board finds the preponderance of the evidence is also against finding that the Veteran's hypertension is related to his active military service, to include herbicide exposure. The Board initially notes that the Veteran served on active duty in the Republic of Vietnam from 16 May 1969 to 10 April 1970 and is therefore presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307. The Veteran served as a private in an artillery unit. Nonetheless, the record does not show that the Veteran's hypertension began in service or is in any way related to service or any herbicide exposure from service. The Veteran's service treatment records are negative for any findings pertaining to hypertension. The Veteran's VA and non-VA treatment reports show treatment for hypertension but do not attribute his disease to service or any event of service. Moreover, in August 2020, the AOJ obtained an addendum opinion. The examiner opined that while recent studies have shown an association with hypertension and veterans assigned to the Chemical Corps, who had a high exposure to herbicides, there was no association with veterans with other military occupational specialties (MOS). The examiner opined that the "prospect of exposure to TCDD from Agent Orange in ground troops in Vietnam seems unlikely in light of the environmental dissipation of TCDD, little bioavailability, and the properties of the herbicides and circumstances of application that occurred. Photochemical degradation of TCDD and limited bioavailability of any residual TCDD present in soil or on vegetation suggest that dioxin concentrations in ground 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 dislodge ability 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 United States (US) Air Force RANCH HAND and US 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." Upon review of the record, the Board finds that service connection for hypertension on a direct basis is not warranted. The probative and persuasive evidence of record weighs against the Veteran's claim in this regard as well. In fact, the Board finds the medical opinions of record to be highly probative evidence against the claim because they provide detailed rationale based on the relevant evidence of record. The examiners fully explained the reasoning underlying their opinions and found that the Veteran's treatment records do not suggest that his hypertension had onset in service, is due to agent orange exposure, or is secondary to service-connected diabetes. Additionally, there is no competent medical opinion to the contrary. To the extent that the Veteran believes that his hypertension is linked to his active duty service or was caused or aggravated by his service connected disability, the Board notes that he is competent to provide testimony concerning factual matters of which he has fight-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007). However, the question regarding the etiology of his hypertension is an issue of causation of a medical condition, which requires a medical determination outside the realm of common knowledge of any lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, his lay statements alone are not sufficient to establish the required nexus in this case. The Board must then rely on the available and probative medical evidence, which have found no nexus between the Veteran's hypertension and his military service and that it is less likely than not that his hypertension was caused or aggravated by his service-connected diabetes. Additionally, the Board finds that entitlement to service connection for hypertension under 38 C.F.R. § 3.309 (e), based on his presumed exposure to herbicide agents, is not warranted. Hypertension is not among the exclusive list of conditions which are covered by this presumption. See 38 C.F.R. §§ 3.307, 3.309 (e). While hypertension is not on the list of diseases recognized by VA as being presumptively related to exposure to herbicide agents, the National Academies of Sciences, Engineering, and Medicine (NAS) in its most recent Agent Orange update moved hypertension from limited or suggestive of an association between hypertension and herbicide exposure to sufficient evidence of an association. See Veterans and Agent Orange Update 11 (2018). The standard for this new category is epidemiologic evidence is sufficient to conclude that there is a positive association. That is, a positive association has been observed between exposure to herbicides and the outcome in studies in which chance, bias, and confounding could be ruled out with reasonable confidence. For example, if several small studies that are free of bias and confounding show an association that is consistent in magnitude and direction, there could be sufficient evidence of an association. There is sufficient evidence of an association between exposure to the chemicals of interest and hypertension. However, while the NAS has found some connection between herbicide exposure and hypertension, hypertension is not a presumptive condition, which means that the medical evidence in each specific case must be reviewed, and medical opinions reached considering the totality of their health and medical circumstances. Here, as noted, the probative medical evidence of record has found that it is less likely than not that the Veteran's hypertension was the result of his presumed exposure to herbicides during his service in the Republic of Vietnam. The August 2020 examiner found that while medical journals have suggested a link, the link is likely as a result of repeated long-term direct skin contact of the type experienced by United States (US) Air Force RANCH HAND and US 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. As a result, in this case, entitlement to service connection for hypertension based on exposure to herbicide agents is not warranted. Finally, service connection may also be granted for chronic disabilities if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309 (a), to include hypertension. See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). However, there is no evidence, nor allegation, that the Veteran's hypertension was diagnosed either in service or within one year after service, let alone to a compensable degree. See 38 C.F.R. § 3.309. The Veteran reportedly developed hypertension in 2003, which is 33 years after separation from service, and 32 years after the applicable presumptive period. Without evidence supporting a diagnosis in service or within one year of separation, the claim is not warranted. In sum, the preponderance of the evidence weighs against the Veteran's claim and is not in equipoise. Thus, the benefit of the doubt doctrine is not applicable. The appeal is denied. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. B. Smith, 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.