Citation Nr: 21072655 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-09 652 DATE: December 3, 2021 ORDER Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents and as secondary to service-connected diabetes mellitus type 2 (DM II), is denied. REMANDED Entitlement to service connection for chronic renal disease and nephrosclerosis (kidney disability), to include as secondary to service-connected DM II, is remanded. FINDINGS OF FACT 1. The Veteran's hypertension did not manifest in service or for many years thereafter, and the evidence does not show that his hypertension is related to or may be associated with service, including exposure to herbicide agents. 2. The Veteran's hypertension was not caused or aggravated by his service-connected DM II. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension, to include on a secondary basis, 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 FINDINGS AND CONCLUSION The Veteran served on active duty from June 1967 to February 1970. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, among other things, denied entitlement to service connection for hypertension and bilateral kidney condition. In August 2015 the Veteran filed a notice of disagreement (NOD) and in December 2016 the RO issued a statement of the case (SOC). In February 2017 the Veteran timely filed a substantive appeal (via VA Form 9). In January 2019 and July 2021, the Board remanded the Veteran's claim for further evidentiary development, specifically, to schedule the Veteran for a VA examination to determine the etiology of his hypertension and kidney disability. As explained below, the Veteran was afforded a VA examination that was adequate to decide the claim for service connection for hypertension and the RO substantially therefore complied with the remand instructions regarding this claim. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in active military 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 incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. 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 of 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 also be established on a secondary basis for a disability that is proximately due to or the result of a 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) caused by or (b) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a),(b). Entitlement to service connection for hypertension, including due to exposure to herbicide agents On the August 2015 NOD the Veteran stated that his hypertension is due to his military service including his presumed exposure to herbicide agents. Alternatively, the Veteran contends that his hypertension was caused or aggravated by his service-connected DM II. A March 2020 VA examiner diagnosed the Veteran with hypertension dating back to 2010 and his military personnel records confirm he served in Vietnam and is presumed to have been exposed to herbicide agents. Thus, a current disability and in-service incurrence of a disease or injury have been demonstrated. A Veteran, who, during active military service, served in the Republic of Vietnam during the period beginning in January 1962 and ending in May 1975, 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). VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307 (a)(6) are met. See 38 C.F.R. § 3.309(e). Hypertension is not among the listed disabilities under 38 U.S.C. § 3.309(e) and the presumption afforded under this provision cannot provide a basis for a grant of service connection in this case. However, consideration of whether a grant of service connection on a direct basis is warranted, is still necessary in this case. 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). Therefore, the remaining dispositive question is whether any relationship exists between the Veteran's current hypertension and his military service, to include his presumed exposure to herbicide agents; or whether his service-connected DM II caused or aggravated his hypertension. An August 2021 VA examiner opined that the Veteran's hypertension was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that there is no evidence of hypertension while in service. He noted that the Veteran's blood pressure was normal at separation and there is no evidence of hypertension until 2010. The VA examiner explained that it is highly unlikely that the Veteran would have had high blood pressure dating to 1970 without a diagnosis prior to 2010. Additionally, the VA examiner explained that exposure to herbicide agents has not been established as a cause of hypertension based on a review of the medical literature, including the National Academy of Sciences (NAS) Institute of Medicine study, "Veterans and Agent Orange: Update 11 (2018)," which suggested a possible association between Agent Orange and hypertension. The Board notes that the 2018 NAS study upgraded hypertension to the "sufficient" category from "limited or suggestive," indicating that there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and exposure to herbicide agents. Medical article and treatise evidence may suffice to establish nexus in instances where "standing alone, [it] discusses 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." Sacks v. West, 11 Vet. App. 314, 317 (1998). However, the NAS study is general in nature, and was specifically addressed bt the August 2021 VA examiner, who explained the reasons for his conclusions based on an accurate characterization of the evidence of record including the 2018 NAS study. Therefore, the specific, reasoned opinion of the VA examiner is of greater probative weight than the general 2018 NAS study. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Generally, the Veteran asserts that his hypertension is caused by being exposed to herbicide agents while serving in Vietnam. 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, 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"). The Veteran has not indicated that he has such experience and his opinion on the question of nexus is not competent evidence. There is no evidence of any complaints of, or treatment for, hypertension in the Veteran's STRs. The Veteran has not reported, and the evidence does not otherwise reflect, that he has experienced a continuity of hypertension symptomatology or high blood pressure in or during the years since service. Neither the clinical record, medical opinions, or the lay statements of record establish a continuity of symptomatology with respect to the claimed hypertension. As there is no other evidence of a relationship between the Veteran's hypertension and service, 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, or that it is otherwise related to service or due to herbicide agent exposure. Entitlement to service connection for hypertension as secondary to DM II Turning to the criteria for service connection on a secondary basis, a March 2020 VA examiner opined that the Veteran's hypertension is less likely than not proximately due to or the result of his service-connected DM II. The VA examiner explained that the Veteran was diagnosed with hypertension long before he was diagnosed with DM II. The VA examiner explained that the Veteran requires several medications to control his hypertension and was recently diagnosed with DM II which is mild and controlled without medications. The VA examiner concluded it was not possible that his DM II caused or aggravated his hypertension and is more likely that his hypertension is "familiar and aggravated by diet, morbid obesity." The March 2020 VA examiner provided an opinion on a secondary basis, with separate findings and rationales relating to causation and aggravation and the RO substantially complied with the July 2021 remand instructions. As the March 2020 VA examiner explained the reasons for her conclusions based on an accurate characterization of the evidence of record, her opinion is entitled to substantial probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. The Veteran's statements may be competent on a variety of matters concerning the nature and cause of disability. One of the dispositive questions presented in this case is whether the Veteran's hypertension was caused or aggravated his DM II. This question goes to internal medical processes which extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau, 492 F.3d at 1377, n. 4. An opinion as to whether there is a link between the Veteran's hypertension, where there is no evidence of any symptoms for many years after service, is one requiring specialized knowledge and testing to understand the complex nature of the body systems. Additionally, an opinion as to whether there is a link between the Veteran's hypertension and his DM II requires specialized knowledge and testing to understand the complex nature of the body systems. The Veteran has not indicated that he has such experience and his opinion on the question of nexus is therefore not competent. Therefore, entitlement to service connection for hypertension secondary to DM II is not warranted. For the foregoing reasons, the preponderance of the evidence is against the claim of service connection for hypertension on a direct, secondary, or presumptive basis. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Kidney disability A March 2020 VA examiner diagnosed the Veteran with chronic renal disease and nephrosclerosis. Thus, a current disability has been demonstrated. A March 2020 VA examiner opined that the Veteran's hypertension is less likely than not proximately due to or the result of his DM II. The VA examiner explained although DM II can affect the kidneys, Veteran's DM is mild and doesn't require medications. The VA examiner explained that the Veteran's kidney disability is more likely related to a long history of unstable hypertension with renal scarring/nephrosclerosis. The March 2020 VA opinion does not explain whether the Veteran's kidney disability was aggravated by his DM II. A medical opinion that does not specifically address aggravation is generally inadequate to decide a secondary service connection claim. El-Amin v. Shinseki, 26 Vet. App. 136 (2013). As the VA examiner's opinion is not supported by a thorough rationale, the Board finds his opinion inadequate, and another VA medical opinion is warranted. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). Further, the on the August 2015 NOD the Veteran did not limit entitlement to service connection on a secondary basis and he has not been provided a VA opinion on a direct basis. Therefore, a remand is necessary to determine whether the Veteran's kidney disability is at least as likely as not related to his military service, to the Veteran's exposure to herbicide agents. The matters are REMANDED for the following action: Obtain an opinion from an appropriate physician to determine the etiology of the Veteran's kidney disability. If an examination is deemed necessary, one should be conducted, to include via telehealth if appropriate. The physician should indicate whether it is at least as likely as not (50 percent probability or more) that the Veteran's kidney disability had its onset in or is related to service, to include his exposure to herbicide agents. The fact that kidney disability is not on the list of diseases presumed service connected in veterans exposed to herbicide agents should not be the basis for a negative opinion, as entitlement to service connection may still be established on a direct basis for an individual veteran based on the specific facts of his case. The physician must also opine whether the Veteran's kidney disability is at least as likely as not (1) caused by service-connected DM II; OR (2) aggravated by service-connected DM II. If aggravation is found, the baseline level of disability prior to aggravation should be identified, if possible. The physician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, 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.