Citation Nr: 21075859 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 18-40 896 DATE: December 21, 2021 ORDER Entitlement to service connection for hypertension is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDING OF FACT The Veteran's hypertension is not related to service. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from December 1966 to August 1970. This matter is on appeal from a November 2015 rating decision. The Veteran testified at a September 2021 Board of Veterans' Appeals (Board) Hearing before the undersigned Veterans' Law Judge. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.§ 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for hypertension is denied. The Veteran seeks entitlement to service connection for hypertension. He asserts that he was exposed to Agent Orange while serving in Guam and that this exposure caused his hypertension. Medical records show that the Veteran has a current diagnosis of hypertension. The Veteran's service personnel records show he was on Temporary Deployment to Andersen Air Force Base in Guam from approximately June 1967 to December 1967, and again from June 1968 for 171 days. The Veteran reported that 55-gallon drums of Agent Orange were stored in Guam. He also reported exposure to Agent Orange while patrolling the area of the aircrafts, which completed their mission sorties over Vietnam and had layovers in Vietnam as the aircrafts were exposed to herbicides. At the September 2021 Board Hearing, he further reported that Agent Orange was used to spray the perimeter of the Andersen Air Force Base where he was stationed. Based upon information provided to Compensation Services by the Department of Defense (DoD), it was found that DoD has not identified any location on the island of Guam where Agent Orange was used, tested, stored, or transported. According to DoD, Agent Orange was developed for jungle combat operations in Vietnam and was used there from 1962 to early 1971. DoD further stated that there were no combat operations on Guam during those years and so there was no need for Agent Orange use there. Additionally, DoD noted that Guam was not on the Agent Orange shipping supply line, which went directly from storage at Gulfport, Mississippi to South Vietnam via merchant ships. According to DoD, routine base maintenance activities such as range management, brush clearing, and weed killing were performed with commercial herbicides at all military bases worldwide, and not through the use of Agent Orange. Commercial herbicides do not fall under the regulations governing Agent Orange exposure at 38 C.F.R. § 3.307 (a)(6)(i). All evidence shows that any herbicide use the Veteran or others observed, or were associated with, was the commercial variety, not Agent Orange. Finally, the report states that there is no scientific evidence available to VA showing that being in the vicinity of aircraft or equipment previously used in Vietnam can be considered as exposure to active Agent Orange or can result in long-term health effects. Also, the C-123 Operation Ranch Hand aircraft used to spray Agent Orange were flown out of air bases in Vietnam, and not Guam. In addition, all liquids, from cooking oil to jet fuel, were shipped in 55-gallon drums, so the presence of such drums or barrels does not demonstrate the use of Agent Orange. The Board finds as fact that the Veteran was not exposed to Agent Orange in Guam. The Department of Defense has stated that it was not used on Guam, and the Board accords such determination high probative value, as DoD would be in the best position to know what was used in Guam while service members were stationed there, and the rationale provided is logical (no combat in Guam and Agent Orange used for combat operations). The Veteran was diagnosed with hypertension in 2004. Hypertension is listed as a "chronic disease" under 38 C.F.R. § 3.309 (a). As such, an analysis of the presumptive provisions of 38 C.F.R. § 3.303 (b) for "chronic" in-service symptoms, "continuous" post-service symptoms, or manifesting within one year of service separation at 38 C.F.R. § 3.307 apply to the appeal for hypertension. For a chronic disease, such as hypertension, service connection may be established under 38 C.F.R. § 3.303 (b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303 (b). Service connection may also be established with certain chronic diseases, including hypertension, by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Based on the preceding, entitlement to service connection for hypertension is not warranted on the basis of a chronic disease in service or on the basis of the presumption related to chronic diseases. Stated differently, hypertension was not noted during service or within one year of separation; thus no continuity of symptomatology. There are no documented records of it manifesting within one year following service. The Veteran has not alleged having hypertension either in service or soon after service, either. In sum, there is no competent and credible evidence of a nexus between the Veteran's hypertension and service. The Board has considered the Veteran's lay statements, which are probative insofar as they report symptomatology capable of lay observation, see Layno, 6 Vet. App. 465; however, to the extent that the Veteran attempts to provide a nexus between his hypertension and active service, such statements are afforded no probative value given the Veteran's lack of related medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The diagnosis and etiology of hypertension is a complex medical issue and the Veteran's statements alone cannot establish a nexus to service. In sum, the Board concludes that the preponderance of the evidence of record is against the Veteran's claim for service connection for hypertension. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The Veteran contends that his acquired psychiatric disorder, to include PTSD, stems from his service. The Veteran contends that he is entitled to service connection for posttraumatic stress disorder (PTSD). To obtain service connection, the PTSD diagnosis must be made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-5). 38 C.F.R. § 4.125 (a). A private medical report shows a diagnosis of PTSD. See December 2017 private medical report from Dr. A. B. However, it is unclear whether the Veteran has a diagnosis of PTSD under the DSM-5. Thus, more information is needed to allow the Board to make a fully-informed decision. Remand is required for a VA examination and medical opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) under DSM-5. If the Veteran is diagnosed with PTSD under the DSM-5, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If the Veteran is not diagnosed with PTSD, the examiner must explain how the diagnostic criteria are not met. For EACH AND EVERY current diagnosis of an acquired psychiatric disability, include PTSD and/or otherwise, the examiner is specifically instructed to provide the following information: (a) Is it "at least as likely as not (50 percent probability or greater)" that any acquired psychiatric disorder diagnosis BEGAN IN or is related to his time in the service, yes or no? (b) Is it "at least as likely as not (50 percent probability or greater)" that any acquired psychiatric disorder diagnosis was CAUSED BY either of a service-connected disability, yes or no? (c) Is it "at least as likely as not (50 percent probability or greater)" that any arm disability underwent any incremental increase in disability, regardless of its permanence, due a service-connected disability, no? The examiner is instructed to explicitly address and consider a December 2017 private medical report from Dr. A. B., who opines that the Veteran's PTSD is at least as likely as not related to the Veteran's service. The examiner is instructed to presume that the Veteran's in-service stressors of severe racial harassment and constant fears of being abducted, and constant fear of explosions are verified. See September 2016 Veteran's Statement; September 2021 Board Hearing Transcript, p. 8; September 2016 Veteran's Statement; see also Buddy Statement from E.S., a fellow serviceman (The Veteran submitted a buddy statement from E.S., a fellow serviceman, who attested that he, along with the Veteran, was stationed at Andersen Air Force Base in Guam as airmen police and that they secured highly sensitive aircrafts and bombers. They also were together in the 454th Bomb Wing headquarters at the Columbus Air Force Base in Mississippi where they served as security police. He testified that the Veteran and he had to personally patrol and secure the loading of bombs to aircrafts and the refueling of aircrafts). The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. THE EXAMINER SHOULD ALSO BE AWARE THAT IN RENDERING AN OPINION, IT MUST "CONTAIN NOT ONLY CLEAR CONCLUSIONS WITH SUPPORTING DATA, BUT ALSO A REASONED MEDICAL EXPLANATION CONNECTING THE TWO." SEE NIEVES-RODRIGUEZ V. PEAKE, 22 Vet. App. 295, 301 (2008). Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Cho, 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.