Citation Nr: 21070232 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 13-11 757A DATE: November 23, 2021 ORDER Entitlement to service connection, to include on secondary and presumptive bases, for hypertension is denied. Entitlement to service connection, to include on secondary and presumptive bases, for kidney failure is denied. FINDINGS OF FACT 1. The Veteran's hypertension did not originate in service or until years thereafter and is not otherwise etiologically related to service, to include on a presumptive basis, and was not proximately due to or aggravated by a service-connected disability. 2. The Veteran's kidney failure did not originate in service or until years thereafter and is not otherwise etiologically related to service, to include on a presumptive basis, and was not proximately due to or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection, to include on a secondary basis or a presumptive basis, for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for entitlement to service connection, to include on a secondary basis or a presumptive basis, for kidney failure have not been met. 38 U.S.C. §§ 1101, 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to April 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from June 2009 and June 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The appeal was last remanded by the Board in December 2020 for additional development. A review of the claims file shows that there has been substantial compliance with the Board's prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran appeared for a hearing before a Veterans Law Judge in November 2016. The Veterans Law Judge, who conducted the hearing, has since retired. The hearing transcript is associated with the claims file. The Veteran was provided notice of the Veterans Law Judge's retirement in September 2021. The September 2021 notice requested a response within 30 days if the Veteran desired another hearing. Since the Veteran did not respond to the September 2021 notice within 30 days, it is assumed that the Veteran did not want another hearing. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Secondary service connection may be granted when a disability is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 447-48 (1995). The Veteran is presumed to have been exposed to herbicides. VA laws and regulations provide that if a Veteran was exposed to herbicides during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation. The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32, 395-32, 407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21, 260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). 1. Entitlement to service connection, to include on secondary and presumptive bases, for hypertension Service treatment records are negative for any complaints, treatment, or diagnosis of hypertension. The Veteran's January 1968 pre-induction examination and April 1970 separation examination indicate that evaluation of the Veteran was normal. The earliest VA treatment record to document hypertension was a November 1998 VA treatment record which noted that the Veteran had hypertension for the past 10 years. A VA ratings examination was conducted in June 1999. The VA examiner noted that the Veteran first had high blood pressure in 1991 or 1992, although he had arterial hypertension for 20 years. The Veteran was afforded a hearing before a now retired Veterans Law Judge in November 2016. The Veteran asserted that his hypertension and was due to exposure to herbicides during service and also due to his service-connected PTSD. When questioned, the Veteran testified that his doctors had not informed him that his PTSD was impacting his hypertension and that his doctors were unable to opine whether his hypertension was due to exposure to Agent Orange. The Veteran was afforded an in-person VA examination for his hypertension in July 2019. The VA examiner noted a diagnosis of hypertension diagnosed in 1994. The VA examiner determined that the Veteran's hypertension was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected PTSD. The VA examiner explained that extensive medical records review and research was conducted. Medical treatment records supported a diagnosis of essential hypertension. The VA examiner stated, "the pathogenesis of primary hypertension (formerly called "essential" hypertension) is poorly understood but is most likely the result of numerous genetic and environmental factors that have multiple compounding effects on cardiovascular and renal structure and function." The VA examiner conceded that the exact etiology of primary hypertension remained unclear but that risk factors strongly and independently associated with its development included age, obesity, family history, race, reduced nephron number, high-sodium diet, excessive alcohol consumption, and physical inactivity. The VA examiner further explained that medical literature did not support the theory that PTSD caused or was involved in the development of essential/primary hypertension. Accordingly, the Veteran's hypertension was less likely than not proximately due to or the result of the Veteran's service-connected PTSD. An addendum VA opinion was obtained in January 2021. The VA examiner determined that an in-person examination was not necessary because the medical evidence was clear. The VA examiner determined that the Veteran's hypertension did not occur in service, was not related to service, and was not related to Agent Orange exposure. The VA examiner also determined it was less likely than not (less than 50 percent probability or greater) that the Veteran's claimed hypertension condition was proximately due to or aggravated by the Veteran's service-connected disabilities, to include the Veteran's PTSD. The VA examiner explained that there was no medical basis for such an assumption because PTSD did not cause or aggravate primary arterial systemic hypertension. Moreover, the VA examiner opined that there was no or insufficient evidence that the Veteran's hypertension had been aggravated. The VA examiner explained that the Veteran's blood pressure remained well controlled on the same or similar medication. The VA examiner further determined that there was no or insufficient evidence that the Veteran's hypertension was related to service. Instead, the VA examiner opined that the Veteran met the demographic profile of someone with hypertension. The VA examiner further noted that the Veteran had a BMI of greater than 38 at one time that was indicative of massive obesity. In addition, the Veteran drank alcohol and smoked for several years and had a diet that consisted of processed foods and soda which improved somewhat with nutritional counseling. Moreover, the Veteran worked as a truck driver and had a sedentary lifestyle. The Board notes that the Veteran's DD 214 indicates that he served overseas for more than 7 months with service in Vietnam as a crewman. The Board finds that the Veteran's service in Vietnam is consistent with the facts and circumstances surrounding exposure to herbicides. VA laws and regulations provide that if a Veteran was exposed to herbicides during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation. The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32, 395-32, 407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21, 260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). At the outset, the Board notes that 38 C.F.R. § 3.309(e) specifically lists those diseases covered by the provision, and the list does not include hypertension. Therefore, service connection for the Veteran's hypertension cannot be granted on a presumptive basis. 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 was in fact causally linked to such exposure. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Meaning, the Board must still consider whether the Veteran's hypertension is directly related to service. No medical evidence suggests that the Veteran's hypertension is directly related to service. The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis for hypertension and his separation examination was normal. The Board acknowledges the Veteran's November 2016 hearing testimony that he believed his hypertension was due to Agent Orange exposure; however, the Veteran conceded that his doctors were unable to confirm his beliefs. As a layperson lacking in medical training and expertise, the Veteran cannot provide a competent opinion on matters as complex as the diagnosis and etiology of his hypertension. As such, his lay assertions regarding a diagnosis and causation of his hypertension are of no probative value. Further, even if his opinion regarding the etiology of a current diagnosis of hypertension was afforded some probative value, it is far outweighed by the opinions provided by the VA examiners who have greater training and expertise than the Veteran in diagnosing and assessing hypertension. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). To determine the cause of such a condition requires medical training and expertise that the Veteran does not possess. 38 C.F.R. § 3.159 (a)(1), (2) (2018). Accordingly, there is no competent evidence of a link between the Veteran's hypertension and his active service. Instead, the Board affords greater probative value to the July 2019 VA examiner's report which specified that the Veteran had essential hypertension and cited medical records and medical research in determining that there was no nexus between the Veteran's hypertension and his military service, to include exposure to herbicides. Next, the Board also finds that entitlement to service connection for hypertension is not warranted on a secondary basis either. Again, the Board acknowledges the Veteran's November 2016 hearing testimony that he believed his hypertension was secondary to his PTSD. However, the Veteran conceded that his doctors had not told him that his PTSD was impacting his hypertension. Again, the Board finds that the Veteran's testimony is outweighed by the July 2019 and January 2021 VA examiner's reports. Id. The Board affords greater probative weight to the July 2019 and January 2021 VA examiner's reports which respectively determined that the Veteran's hypertension was not etiologically related to or aggravated by his PTSD. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for hypertension based on presumptive, direct, or secondary bases. The claim is denied. 2. Entitlement to service connection, to include on secondary and presumptive bases, for kidney failure Service treatment records are negative for any complaints, treatment, or diagnosis of hypertension. The Veteran's January 1968 pre-induction examination and April 1970 separation examination indicate that evaluation of the Veteran was normal. A November 1998 VA treatment record documented that the Veteran had kidney failure and needed dialysis. Subsequent VA treatment records document that the Veteran received a kidney transplant in 2002. The Veteran was afforded a hearing before a now retired Veterans Law Judge in November 2016. The Veteran testified that he believed that his hypertension was caused by exposure to Agent Orange which in turn caused him to lose his kidneys. He further stated that his doctors were unable to agree or disagree with that proposition. The Veteran further testified that he was not treated for kidney failure during service and that it was his contention that his kidney failure was secondary to his hypertension. A February 2018 VA treatment record notes that the Veteran had end stage renal disease from presumed hypertension. The record also notes that the Veteran had hypertension for more than 20 years. The Veteran was afforded a VA examination in January 2021.The VA examiner noted that medical evidence from experts who conducted the Veteran's kidney transplant made it clear that focal segmental glomerulosclerosis was the diagnosis that led to renal failure and the need for a transplant. The VA examiner further stated that hypertension was not a factor in the Veteran's focal segmental glomerulosclerosis event though hypertension was listed repeatedly based on information given to the providers without the benefit of an actual biopsy report. The VA determined it was less likely as not that the Veteran's claimed kidney failure was proximately due to his service-connected disability or aggravated beyond its natural progression by a service-connected disability, to include the Veteran's hypertension. The VA examiner explained that there was no medical basis for such assumption, that focal segmental glomerulosclerosis was multifactorial, and that none of the Veteran's service-connected disabilities nor his exposure to Agent Orange were proximate or even plausible causes. The Veteran has not contended that his kidney failure is due to Agent Orange exposure. Even if he had, the Board emphasizes that 38 C.F.R. § 3.309(e) specifically lists those diseases covered by the provision, and the list does not include kidney failure. Therefore, service connection for the Veteran's kidney failure cannot be granted on a presumptive basis. Next, the Board finds that entitlement to service connection for kidney failure is not warranted a direct basis either as the Veteran has not contended and the evidence does not show that his kidney failure was incurred in or was etiologically related to his active-duty service. The Board emphasizes that no lay or medical evidence whatsoever suggests that the Veteran's kidney failure was due to herbicide exposure or was otherwise directly caused by service. Therefore, direct service connection is not warranted. (Continued on the next page) Instead, the Veteran argues that his kidney failure is etiologically related to or aggravated by his hypertension. Service connection may be granted for a disease or injury which resulted from a service-connected disability or was aggravated thereby. The evidence does not show that the Veteran's hypertension is related to service. Therefore, service-connection for kidney failure on a secondary basis to this condition cannot be established. Service connection for cause of the Veteran's kidney failure must also be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Palombi 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.