Citation Nr: 21074934 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 13-13 941 DATE: December 16, 2021 ORDER Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents, is denied. Entitlement to service connection for chronic renal failure (kidney disability), to include as due to exposure to herbicide agents and on a secondary basis, is denied. FINDINGS OF FACT 1. The Veteran's hypertension and kidney disability did not manifest in service or for years thereafter, and the evidence does not show that either disability is related to or may be associated with service, including exposure to herbicide agents. 2. The Veteran's kidney disability was not caused or aggravated by a service-connected disease or injury. CONCLUSIONS OF LAW 1. 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. 2. The criteria for entitlement to service connection for kidney disability, to include on a secondary basis, have not been met. 38 U.S.C. §§ 1110, 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 March 1965 to March 1969. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, among other things, denied entitlement to service connection for hypertension and kidney problems. In January 2013 the Veteran filed a notice of disagreement (NOD) and in March 2013 the RO issued a statement of the case (SOC). In April 2013 the Veteran timely filed a substantive appeal (via VA Form 9). The Veteran died in May 2017 during the pendency of this appeal. The appellant is his surviving spouse. In May 2017 the Veteran's surviving spouse filed a Request for Substitution of Claimant Upon the Death of Claimant (VA Form 21-0847). In an October 2019 letter the agency of original jurisdiction (AOJ) recognized the appellant as a substitute claimant. In December 2015 again in December 2019 the Board remanded the appellant's claim for additional development. In September 2020 the Board denied entitlement to service connection for hypertension and kidney disorder. The appellant appealed the Board decision to the U.S. Court of Appeals for Veterans' Claims (Court) and in August 2021 while the matter was pending before the Court, the appellant's then attorney and VA's General Counsel filed a joint motion for remand (JMR). In August 2021 the Court granted the parties' motion, vacated the September 2020 Board decision, and remanded the matter for action consistent with the JMR. Hypertension and kidney disability The Veteran contended and now the appellant contends that the Veteran's hypertension and kidney disability is related to his service, specifically, his exposure to herbicide agents during his service in Vietnam. At the outset, the Board notes that VA regulations define hypertension as diastolic blood pressure as predominantly 90mm. or greater, and isolated systolic hypertension as systolic blood pressure predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm, and also provide that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. See 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, Note 1. Multiple blood pressure readings to be taken over multiple days as specified in Note (1) of DC 7101 applies only to confirming the existence of hypertension. Gill v. Shinseki, 26 Vet. App. 386, 391 (2013). 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). However, hypertension is not among the listed disabilities under 38 U.S.C. § 3.309(e). Thus, the presumption afforded under this provision cannot provide a basis for a grant of service connection in this case. Nevertheless, 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). 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). 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), which includes hypertension, as other organic diseases of the nervous system. 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). A January 1999 private physician and December 2010 VA examiner diagnosed the Veteran with hypertension. Also, a June 2008 private treatment note indicates that the Veteran was diagnosed with mildly echogenic kidneys consistent with renal disease. A July 2010 private physician diagnosed the Veteran with bilateral renal cysts. A November 2010 VA examiner diagnosed the Veteran with chronic renal disease. Thus, a current disability has been demonstrated as to both issues. As to the in-service injury or disease element, service treatment records (STRs) do not show that the Veteran sought treatment or reported hypertension or a kidney disability in service. Nevertheless, the appellant contends that the Veteran's hypertension and kidney disability are due to exposure due to herbicide agents. As the Veteran served in Vietnam and is presumed to have been exposed to herbicide agents, he has thus met the in-service disease or injury requirement. The remaining question(s) before the Board is whether the Veteran's hypertension and kidney disability manifested to a compensable degree in service or within the applicable presumptive period, whether continuity of symptomatology has existed since service, or whether these disabilities were incurred in service or are otherwise related to an in-service injury or disease, to include his presumed exposure to herbicide agents. A December 2010 VA examiner opined it is less likely than not that the Veteran's hypertension is related to service. The VA examiner noted that the Veteran reported he was initially diagnosed with hypertension in 1975. The Veteran reported that he did not feel any symptoms and blacked out on the day of his diagnosis. The VA examiner noted that the Veteran's blood pressure readings were normal, and the available medical records did not show he was treated for hypertension. A March 2016 VA examiner opined 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 the Veteran's STRs do not document a chronic on-going treatment or condition for hypertension. The VA examiner acknowledged that the Veteran's STRs show elevated levels of blood pressure, however, concluded that this did not establish a diagnosis of hypertension. The VA examiner noted that Veteran's blood pressure was normal at his separation examination and he was not diagnosed with hypertension until 1975. The VA examiner also explained that peer-reviewed literature does not document that Agent Orange causes hypertension and it is not a presumptive condition. In January 2020, a VA physician opined it is less likely than not that the Veteran's hypertension had its onset during his service or is otherwise related to his active service, to include his presumed exposure to herbicide agents. The VA physician explained that the Veteran's STRs are silent for a diagnosis of hypertension and his post-service medical records reflect a diagnosis of hypertension several years after his service. The VA physician 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 VA physician explained that a causal relationship cannot be inferred because the NAS study was cross-sectional and data collection did not include some of the important risk factors such as family history of hypertension, diabetes mellitus, or dietary intake. The VA physician further explained that the hypertension is a common primary diagnosis, that the pathogenesis is complex and, though poorly understood, is most likely the result of numerous genetic and environmental factors that have multiple compounding effects on cardiovascular and kidney structure and function. The VA physician pointed to common risk factors such as age, obesity, weight gain, family history, and race. The VA physician noted that hypertension tends to be more common, more severe, occur earlier in life, and be associated with greater target-organ damage with African Americans. In the August 2021 JMR, the Court found that the Board erred by failing to provide an adequate statement of reasons or bases pertaining to its analysis of the appellant's credibility. Specifically, the Board found the appellant competent, but not credible, to report a history of continued symptomatology since active service. The Court determined that in making this determination, the Board solely relied on the gap in time between the asserted symptoms and the first date in treatment. The Veteran never reported, and the evidence does not otherwise reflect that he experienced a continuity of symptomatology for his hypertension or kidney disability in or during the years since service. At the December 2010 VA examination the Veteran reported that he was diagnosed with hypertension in 1975. The Veteran reported that prior to being diagnosed with hypertension he experienced no symptoms and visited a doctor after blacking out. The Veteran has not submitted any other statements indicating he experienced symptoms that could be considered manifestations of his hypertension while in service or between his separation from the military and his reported diagnosis of hypertension in 1975. While hypertension is considered a chronic disease for the purposes of 38 C.F.R. § 3.309(a), the Veteran's STRs do not reflect high blood pressure readings or symptoms of hypertension, and all relevant systems were normal at the March 1969 separation examination, with a normal blood pressure reading of 128/76. The Veteran did not indicate, and the record does not otherwise reflect that he had symptoms of hypertension that were early manifestations of this chronic disease. Traut v. Brown, 6 Vet. App. 495 (1994) (establishing service connection on a presumptive basis does not require that a chronic disease be diagnosed within the applicable time period; rather, symptoms that manifest within this time period may subsequently be determined to have been early manifestations of a chronic disease). As the Veteran's hypertension was not noted in service, entitlement to presumptive service connection on a continuity of symptomatology basis is not warranted. To the extent that the appellant claims that the Veteran's hypertension has existed since service, she has not made any specific statements regarding how this disability manifested in service or up until when the Veteran was diagnosed with hypertension in 1975. Although the appellant generally asserts that the Veteran experienced a continuity of symptomatology for his hypertension since service, the appellant did not describe any of the Veteran's symptoms and, in effect, her contention serves as a diagnosis of hypertension dating back to his active duty, which, the appellant is not competent to make. 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"). As the Veteran reported that he first experienced hypertension symptoms (i.e. blacking out) in 1975, several years after he was discharged from active duty in March 1969, this reporting contradicts the appellant's contention that the Veteran experienced continuous symptoms since service. Further, although the Veteran reported he was diagnosed with hypertension in 1975, the earliest medical record of treatment for this disability is in April 1997. The Board finds that such a gap in treatment since separation from service along with the Veteran's reporting weighs against the appellant's claim. Therefore, neither the clinical record, medical opinions, or the lay statements of record establish a continuity of symptomatology with respect to the claimed hypertension or kidney disability and the appellant is not credible in this regard. In the November 2021 informal hearing presentation (IHP) the appellant's representative stated that numerous prior decisions by the Board have found that the 2018 NAS report serves as probative evidence of a causal link between hypertension and Agent Orange exposure in granting service connection. The appellant's representative recognized that these decisions are not binding, however, stated that "they are illustrative of the Board's recognition of a causal link between hypertension and Agent Orange exposure in other case." The appellant's representative also argued that the 2018 NAS report should be afforded greater probative weight than the January 2020 VA opinion as it offered no specific reason what caused the Veteran's hypertension. The appellant's representative also argued that the January 2020 VA opinion is of lesser probative value as the VA examiner did not have the opportunity to examine the Veteran or speak to him about his symptomology or medical history. Although the appellant's representative referenced previous Board decisions which granted service connection for hypertension as presumptively due to exposure to herbicide agents, pursuant to 38 C.F.R. § 20.1303, Board decisions are not precedential and are not binding in other cases before the Board, as was recently explained in Jurkiw v. McDonough, No. 20-4198, 2021 U.S. App. Vet. Claims LEXIS 2165 (Dec. 9, 2021) (mem dec) (Toth, J.). See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). See also Lynch v. Gober, 11 Vet. App. 22, 27 (1997) (noting that Board decisions "are of no precedential value before the [Board] or this Court"), vacated on other grounds, Lynch v. West, 178 F.3d 1312 (Fed. Cir. 1998). The Board decision in this case, as in every other case, rests on the specific facts of the case at hand. The Board acknowledges 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 2018 NAS study is general in nature, and was specifically addressed by the January 2020 VA examiner, who explained the reasons for her conclusions based on an accurate characterization of the evidence of record including the 2018 NAS study. Therefore, the specific, reasoned opinion of the January 2020 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). As to the argument that the January 2020 VA opinion is of lesser probative weight because the physician who prepared the opinion did not have the opportunity to examine the Veteran, the duty to assist statute and regulation do not require that examination be conducted, but rather, makes VA responsible for providing "a medical examination or obtaining a medical opinion" when review of the record reflects it is necessary to render a decision on the claim. 38 U.S.C. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4)(i) (emphasis added). The opinion must be weighed based on its own terms and not speculation that an examination would have altered the opinion. See Nieves-Rodriguez, 22 Vet. App. at 304. The physicians who prepared the March 2016 and January 2020 opinions opined that it is less likely than not that the Veteran's hypertension was caused by service or exposure to herbicide agents. These VA physicians also provided an opinion that the Veteran's kidney disorder is less likely than not related to service or herbicide agent exposure. The Board places significant probative weight on these opinions based on their reasoning and there is no specific medical opinion in the evidence of record to the contrary. The Veteran and now the appellant contends that his hypertension and kidney disability are 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 kidney disability and service, including due to exposure to herbicide agents, where there is no evidence of any hypertension or kidney disability for years after service, is one requiring specialized knowledge and testing to understand the complex nature of the body systems. See Jandreau, 492 F.3d 1372, 1377, n. 4. The Veteran nor the appellant have indicated that they have such experience and their opinion on the question of nexus is not competent evidence. Finally, the appellant also contends that the Veteran's kidney disability is secondary to his hypertension. As the Veteran is not in receipt of service connection for hypertension, entitlement cannot be established for disability secondary to this disease as a matter of law. 38 C.F.R. § 3.310 (providing for service connection for disability related an already service-connected disease or injury). For the foregoing reasons, the preponderance of the evidence is against the claim of service connection for hypertension and kidney disability 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. 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.