Citation Nr: 21069669 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 16-24 631A DATE: November 19, 2021 ORDER Entitlement to service connection for hypertension, to include as due to Agent Orange exposure, is denied. FINDING OF FACT The preponderance of the evidence establishes the Veteran's hypertension was not present until more than one year following his discharge from service and is not etiologically related to his active service, to include as due to his conceded herbicide exposure. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for hypertension, to include as due to Agent Orange exposure have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1969 to June 1971. These matters come 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). When this case was last before the Board in April 2021, it was remanded for additional development. Specifically, the RO was instructed to a obtain medical opinion regarding the etiology of the Veteran's claimed hypertension and obtain outstanding treatment records. A relevant medical opinion was obtained and the outstanding treatment records were associated with the claims file. As such, the Board finds that the AOJ substantially complied with the directives in the April 2021 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service ConnectionLegal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially 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). Presumptive service connection on the basis of herbicide exposure is authorized for specified diseases. 38 U.S.C. § 1116; 38 C.F.R. § 3.309. When a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease is related to service, to include the in-service herbicide exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Hypertension In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends that his claimed hypertension disability is the result of his active-duty service, to include as due to his conceded in-service herbicide exposure. The Board notes that hypertension is not a condition presumptively related to Agent Orange exposure. However, the Veteran can still prove service-connection on a direct basis. The Board also notes that the Veteran had a current diagnosis of hypertension. See VA Treatment Notes; see also June 2021 VA Medical Opinion Disability Benefits Questionnaire (DBQ). Therefore, the central issue that must be resolved is whether the Veteran's current disability originated in service or was otherwise related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Initially, the Board notes that in the National Academies of Sciences (NAS), Engineering and Medicine Veterans and Agent Orange: Update 11 (2018), the NAS found sufficient evidence of an association for hypertension and exposure to herbicide agents used during the Vietnam War. As a result, hypertension was upgraded from its previous classification in the category of "limited or suggestive" evidence of an association with exposure to herbicide agents to the category of "sufficient" evidence of an association with exposure to herbicide agents. According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide agent exposure. This NAS report is constructively before the Board. See Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021). While the Veteran has a currently diagnosed hypertension disability, competent medical evidence of record does not support that this disability was incurred in service or otherwise related to service. The Veteran's service treatment records (STRs) contain no complaints, treatment, or diagnoses of hypertension. The Board notes that on his entrance examination the Veteran checked "yes" next to the box for "high or low blood pressure" however, there are no treatment records for this condition while the Veteran was in service and the Veteran's blood pressure readings throughout service were normal. Further, the Board notes that the onset date of the Veteran's hypertension, even at its earliest claimed date, was outside of a one-year period following his exit from active-duty service. During his June 2013 VA Hypertension examination, the Veteran could not remember when his hypertension became onset, but his spouse claimed the onset date was 1975. Approximately 4 years after the Veteran left active-duty service. However, the Veteran's February 2007 VA treatment records indicate that the Veteran's hypertension was diagnosed "seven to eight years ago," or approximately 24 to 25 years after he left active-duty service. As noted above, the Veteran was initially provided with a June 2013 VA Hypertension examination. For some unknown reason, the examiner was only directed to consider the Veteran's hypertension as a condition which clearly and unmistakably preexisted the Veteran's active service and was only asked to opine as to whether it was aggravated by the Veteran's service. The examiner provided a negative nexus opinion. However, since there was no evidence that the Veteran's hypertension pre-existed service, the Board remanded the Veteran's claim in an October 2018 decision in order to obtain a medical opinion which addressed whether the Veteran's hypertension clearly and unmistakably pre-existed service and if not, whether direct service-connection was warranted to include as due to Agent Orange exposure. In response to the Board's remand, the RO provided the Veteran with an August 2019 VA Hypertension examination. The examiner provided two contradictory nexus opinions. Because of the examiner's self-contradictory opinions, the RO requested that an addendum be provided. In July 2020, the August 2019 examiner provided an addendum to clarify their medical opinions. In this addendum the examiner opined that the Veteran's hypertension was less likely than not (less than a 50 percent probability) a condition which pre-existed his service. The rationale provided was the Veteran qualified his response on the entrance examination as referring to irregular heartbeat, and there was nothing in the Veteran's STRs which would indicate hypertension. Additionally, the examiner noted that the Veteran described his onset of hypertension to be in 1975, 4 years after he left service. The examiner further opined that hypertension is not a conceded VA condition related to herbicide exposure. The Board found these medical opinions to be inadequate and in April 2021 remanded the Veteran's claim for hypertension for an adequate medical opinion. In response to the Board remand, the Veteran was provided with a June 2021 VA medical opinion regarding the etiology of his claimed hypertension. The examiner opined that the Veteran's hypertension was less likely than not (less than a 50 percent probability) etiologically related to his active-duty service to include as due to Agent Orange exposure. Further, the examiner opined that the Veteran's hypertension clearly and unmistakably did not pre-exist his active-duty service. The rationale provided was that there was no evidence that the Veteran's hypertension predated his service. The Veteran's entrance examination showed blood pressure readings within normal limits, and there was no documented hypertension on his STRs. Additionally, the medical evidence of record indicated that the Veteran's hypertension had its onset around 2000, many years after the Veteran left active-duty service. The examiner continued that the Veteran's clarification of an irregular heart rate did not even remotely suggest hypertension, and there is no evidence that the Veteran's hypertension pre-dated service, was due to service, or originated in service. The examiner also opined that the Veteran's hypertension is not due to his conceded Agent Orange exposure. The rationale provided was that while the 2018 NAS study suggested an association between herbicide exposure in the development of hypertension it did not establish a causal link. Further, the current widely accepted peer-reviewed literature has not established remote Agent Orange exposure as a cause of hypertension. The examiner indicated that a review of current treatises and studies failed to return articles which would have indicated a causal relationship. In conclusion the examiner noted that the Veteran did not develop hypertension while in service and it is less likely than not (less than a 50 percent probability) that the Veteran's hypertension is due to service, to include his conceded Agent Orange exposure. The Board weighs the above-mentioned June 2021 VA medical opinion against the Veteran's lay contentions that his hypertension is due to service. While the Veteran is competent to testify to his symptoms, he is not competent to provide a medical opinion as to the etiology of his disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Board finds the VA medical opinion, which opined against a link between the Veteran's currently diagnosed hypertension and his service, to include as due to his conceded herbicide exposure, to be of high probative value. Additionally, the Board again notes that the Veteran himself indicated that he was not diagnosed with this condition until 4 years after he left active-duty service, and the medical evidence indicates he was not diagnosed with hypertension until around 25 years after he left service. Thus, the probative evidence of record preponderates against the Veteran's claim for direct service connection, to include as due to his conceded herbicide exposure. In light of the above discussion, there is no evidence that the Veteran sought treatment for or was diagnosed with hypertension while in service, or within a year after service, and there is no adequate medical opinion in the record linking his current disability to his active-duty service, to include as secondary to his service-connected mood disorder. The preponderance of the evidence weighs against granting service connection for the Veteran's hypertension, to include as due to his conceded herbicide exposure. As the weight of the evidence is against granting the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, the claim must be denied. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.