Citation Nr: 21076867 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 15-08 499 DATE: December 28, 2021 ORDER Entitlement to service connection for hypertension, to include as secondary to service-connected psychiatric disorder, is denied. REMANDED Entitlement to service connection for a heart disability, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for a skin disability, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for a cervical disability, to include as secondary to service-connected left foot disability, is remanded. FINDING OF FACT The Veteran's hypertension did not originate in service, did not manifest to a compensable degree within one year of separation from service, is not otherwise etiologically related to service, and was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension, to include as secondary to a service-connected disability, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters The Veteran had honorable active duty service with the United States Navy from April 1969 to October 1971. The Veteran received the Vietnam Service Medal and the Vietnam Campaign Medal, among other commendations. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's electronic claims file. In July 2018 and December 2020, the Board remanded the instant issues on appeal along with the claim of entitlement to a total disability rating based on individual unemployability (TDIU) for further development. While the matter was in remand status, in a September 2021 rating decision, the RO granted entitlement to a TDIU for the entire period on appeal; hence, there remains no controversy for the Board's consideration. The remaining issues have returned to the Board for further appellate consideration. SERVICE CONNECTION Generally, to establish service connection, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection may also be warranted for a disability, which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. To substantiate a secondary service connection claim, the Veteran must show a present disability (for which service connection is sought); a service-connected disability; and competent evidence that the service-connected disability caused or aggravated the disability for which service connection is sought. In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson, 7 Vet. App. at 39-40; Gilbert, 1 Vet. App. at 57. Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno, 6 Vet. App. at 469. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker, 10 Vet. App. at 74; Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for hypertension, to include as secondary to service-connected psychiatric disorder, is denied. The Veteran seeks entitlement to service connection for hypertension, to include as secondary to his service-connected psychiatric disorder. At the outset, the Board notes that VA regulations specify that the term hypertension means that the diastolic blood pressure is predominantly 90 mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, Diagnostic Code 7101. In addition, VA regulations specify that hypertension must be confirmed by readings taken two or more times on at least three different days. Id., Note (1). Also, as an initial matter, the Board recognizes that the Veteran has a current diagnosis of hypertension. Post-service treatment records indicate that the Veteran has had a diagnosis of hypertension since at least 2009. See April 2021 VA examination report. The Veteran's service treatment records are silent as to any complaint or treatment of high blood pressure. The Veteran's February 1969 entrance examination did not find any complaints or concerns regarding his vascular system. His blood pressure was recorded as 130/80. A concurrent report of medical history also did not report any concerns regarding his blood pressure or vascular system. The Veteran's October 1971 separation examination did not find any complaints or concerns regarding his vascular system. His blood pressure was recorded as 134/80. Thus, the Veteran's service treatment records do not identify a diagnosis of hypertension in service, and the Veteran was not evaluated for high blood pressure at any time in service. Likewise, post-service treatment records fail to reflect that the Veteran had hypertension within one year of his separation from active duty. The record shows that he did not seek treatment for high blood pressure until several years following separation from service. On VA examination in May 2019, the Veteran reported that he had been using medication for high blood pressure "off and on for 25 years." The examiner noted the onset of the Veteran's hypertension in the 1990s; thus, his hypertension manifested approximately 20 years after his separation from service. The examiner concluded that a nexus cannot be established because there is no documented evidence for hypertension during or one-year post service; however, the Board previously deemed this direct service connection opinion inadequate. The May 2019 VA examiner also opined that the Veteran's hypertension is not secondary to his service-connected psychiatric disorder. The examiner attributed the Veteran's hypertension to his strong history of lifestyle conditions of smoking tobacco and obesity, which are known risks for the development of hypertension. The examiner's secondary service connection opinion was accompanied by a clear rationale, and thus, is deemed probative. On VA examination in April 2021, the examiner noted the Veteran was diagnosed with hypertension in 2009. The examiner noted that the Veteran has no history of hypertension during or immediately after service; thus, the examiner opined that the Veteran's hypertension is less likely than not due to service. The examiner further indicated that the Veteran's hypertension was less likely than not due to his service-connected psychiatric disorder, citing medical literature that stated that there was only a 1.3 percent incidence of a psychiatric disorder causing hypertension. Direct service connection necessitates that the Veteran's hypertension was related to an injury or disease incurred in service. The evidence of record, however, does not support such a finding. Importantly, the Veteran's service treatment records are silent as to any complaint or treatment of high blood pressure, and also do not include a diagnosis of hypertension; thus, the service treatment records demonstrate that the Veteran did not have hypertension at the time of his separation from active duty. Likewise, post-service treatment records fail to reflect that the Veteran had hypertension within one year of separation from active duty. The record reflects that the Veteran was diagnosed with hypertension in 2009, nearly 40 years after separation from service. The Board notes that, as reported by the Veteran during the May 2019 VA examination, he had been taking medication for high blood pressure "off and on for 25 years." Thus, the Veteran had taken medication since approximately 1994, more than 20 years after his separation from service. Thus, while the Board notes that the Veteran was diagnosed with hypertension in 2009 and had been taking medication for high blood pressure since approximately 1994, as the record reflects that the Veteran was not diagnosed with hypertension at the time of his separation from service and did not seek treatment for this claimed condition immediately following service, the Board finds that there is no evidence in the record that suggests that the Veteran had hypertension within one year of his separation from active duty. Rather, post-service evidence demonstrates that the Veteran's hypertension manifested years after separation from active duty. The passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F. 3d 1330 (Fed. Cir. 2000); Shaw v. Principe, 3 Vet. App. 365 (1992). Thus, the medical evidence of record does not indicate that the Veteran was treating for high blood pressure or hypertension either in-service or within several years of service. The Board notes that there is also no indication in any of the Veteran's medical care that he related his hypertension to his active duty military service. The medical evidence of record, then, did not link the Veteran's hypertension and his service. As such, service connection for hypertension on a direct basis is not warranted. Turning to the Veteran's assertion that his hypertension is secondary to his service-connected psychiatric disorder, a preponderance of the evidence is against a finding that secondary service connection is warranted. There is no probative evidence that provides any indication of the Veteran's hypertension being caused or aggravated by his service-connected psychiatric disorder. Significantly, there is no medical evidence of record which found the Veteran's hypertension related to his psychiatric disorder. In fact, as previously stated, the May 2019 VA examiner opined that the Veteran's hypertension is not secondary to his service-connected psychiatric disorder. The examiner attributed the Veteran's hypertension to his strong history of lifestyle conditions of smoking tobacco and obesity, which are known risks for the development of hypertension. Furthermore, as indicated above, the April 2021 VA examiner also opined that the Veteran's hypertension was not related to his service-connected psychiatric disorder. Thus, the record is void of any evidence which would support a finding that the Veteran's hypertension was caused or aggravated by his service-connected psychiatric disorder. As such, the Board finds that secondary service-connection is not warranted. While the Veteran believes that his current hypertension is related to service, to include as secondary to his service-connected psychiatric disorder, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion with regard to this condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis or etiology of his claimed hypertension is a matter that is not capable of lay observation, and requires medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his claimed hypertension is not competent medical evidence. Moreover, whether the injuries incurred in service are in any way related to his current disability is also a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran's own opinion regarding the etiology of his current hypertension is not competent medical evidence. The Board finds the adequate opinions of the medical physicians of record to be significantly more probative than the Veteran's lay assertions. As detailed above, hypertension was diagnosed many years after separation from service. The Veteran's contentions are outweighed by the clinical findings documented many years after separation from service and the opinion of a trained medical professional. Moreover, the Veteran's own statements weigh against a finding of continuity of symptomatology, further bolstering the conclusion of the April 2021 VA examiner. Furthermore, the record is void of any evidence which would support a finding that the Veteran's hypertension was caused or aggravated by his service-connected psychiatric disorder. In sum, the most competent and probative medical evidence shows that the Veteran's hypertension did not manifest in service or within the one-year presumptive period, and the most probative evidence fails to link it to the Veteran's service, including as secondary to the Veteran's service-connected psychiatric disorder. Under these circumstances, the claim on appeal must be denied. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, there simply is no competent, probative evidence to support the current disability and medical nexus elements of the claim. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for a heart disability, to include as due to exposure to herbicide agents, is remanded. Compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the December 2020 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain a new opinion addressing the nature and etiology of the Veteran's claimed heart disability. The examiner was directed to provide an opinion as to whether the Veteran had a heart disorder that was related to service, to include whether it was related to his conceded in-service herbicide exposure. The examiner was also instructed to specifically address the diagnosis of mild congestive heart failure in 2013. Pursuant to the December 2020 remand instructions, the Veteran was afforded a VA heart conditions examination in April 2021. The examiner provided a diagnosis of valvular heart disease. The examiner provided a negative nexus opinion, stating that there is no chronic cardiac condition that should show a nexus of the Veteran's valvular heart disease to Agent Orange exposure. The examiner did not address the 2013 diagnosis of mild congestive heart failure. Thus, in light of the above deficiency of the April 2021 VA opinion, another remand is required for completion of the directives of the December 2020 Board remand. See Stegall, 11 Vet. App. at 271. 2. Entitlement to service connection for a skin disability, to include as due to exposure to herbicide agents, is remanded. In the December 2020 remand, the Board directed the AOJ to obtain a new opinion addressing the nature and etiology of the Veteran's claimed skin condition. The examiner was directed to provide an opinion as to whether the Veteran had a skin disorder that was related to service, to include whether it was related to his conceded in-service herbicide exposure. The examiner was also instructed to specifically address the diagnoses of tinea cruris and onychomycosis during the May 2019 VA examination. Pursuant to the December 2020 remand instructions, the Veteran was afforded VA skin examination in April 2021. The examiner noted that the Veteran did not have a current skin condition. As no diagnosis for a skin condition was found on examination, the examiner provided a negative nexus opinion. The examiner did not address the May 2019 diagnoses of tinea cruris and onychomycosis. Furthermore, the examiner did not address the Veteran's diagnosis of basal cell carcinoma, as provided in a March 2021 private dermatopathology report. The Board concludes that a remand is necessary because despite the lack of finding of a skin condition on the April 2021 VA examination, there was a diagnosis related to such during the appeal period. See McLain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the "current disability" requirement for service connection is met if disability is shown at any time during the claims period). Thus, a new VA opinion is warranted. See Stegall, 11 Vet. App. at 271. 3. Entitlement to service connection for a cervical disability, to include as secondary to service-connected left foot disability, is remanded. Pursuant to the December 2020 remand instructions, the Veteran was afforded a VA examination for his cervical spine in April 2021. The examiner noted diagnoses of spinal stenosis and multi-level disc disease in 2019. The examiner further noted that a 2017 magnetic resonance imaging (MRI) of the cervical spine showed evidence for stenosis and disc bulging many years after leaving service. The examiner opined that the Veteran's neck condition was not directly related to service, as the condition manifested many years after service. Notably, the Board notes a December 2017 private treatment record shows that the Veteran went to the emergency room after being rear-ended by a semi-truck and experiencing neck pain as a result of the motor vehicle accident (MVA). The April 2021 VA opinion with respect to direct service connection is probative because the examiner provided supportive rationale and the preponderance of the evidence weighs against finding that in-service disease occurred. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The April 2021 VA examiner also opined that the Veteran's neck condition was less likely than not related to or aggravated by his service-connected left foot disability, as there is no anatomical connection between the neck and the foot. The Court of Appeals for Veterans Claims (the Court) has indicated that findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b) (2017). See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). The Court has also indicated that an opinion that there is "no etiological relationship" may be insufficient to address the question of aggravation. See Allen, 7 Vet. App. at 449 ("[I]t is a big stretch of the English language to construe the phrase 'no etiological relationship between the veteran's service-connected right knee arthritis and the subsequent onset of left knee and bilateral hip arthritis' as encompassing aggravation, especially considering the use of the word 'onset.'"). In this case, the Board finds that the April 2021 VA examiner's opinion addressing whether the Veteran's cervical condition was caused or aggravated by service-connected left foot disability is conclusory, as it simply suggests that there is no relationship with the service-connected disability. Thus, the Board finds that the foregoing opinion pertaining to the Veteran's cervical condition is inadequate with regard to the analysis of the aggravation prong. Furthermore, the Board notes that during the May 2018 Board hearing, the Veteran indicated that he thought his neck condition might be due to a non-service-connected shoulder disability. An August 1969 service treatment record notes a history of shoulder separation. However, this was not addressed by a physician. Accordingly, to ensure compliance with the directives of the December 2020 remand, a new VA opinion addressing the above is necessary. See Stegall, 11 Vet. App. at 271. Finally, on remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. After completing the above development, return the claims file to the examiner who performed the April 2021 VA examination for the heart. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If the April 2021 examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. If the examiner determines that another VA examination is necessary, one should be scheduled. The examiner must provide an opinion as to whether any diagnosed heart condition is at least as likely as not related to an in-service injury, event, or disease. The examiner is asked to specifically address whether any heart disability was caused by his conceded in-service exposure to herbicides. It is not sufficient to state that no disability was shown on any current VA examinations. The examiner is to specifically address the diagnosis of mild congestive heart failure in 2013. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. Return the claims file to the examiner who performed the April 2021 VA skin examination. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If the April 2021 examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. If the examiner determines that another VA examination is necessary, one should be scheduled. The examiner must provide an opinion as to whether any diagnosed skin condition is at least as likely as not related to an in-service injury, event, or disease. The examiner is asked to specifically address whether any skin disability was caused by his conceded in-service exposure to herbicides. The examiner should note that the Veteran was diagnosed with tinea cruris and onychomycosis during the May 2021 VA examination. Further, a March 2021 private dermatopathology report notes a diagnosis of basal cell carcinoma. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 4. Return the claims file to the examiner who performed the April 2021 VA examination for the cervical spine. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If the April 2021 examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. If the examiner determines that another VA examination is necessary, one should be scheduled. The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's diagnosed cervical spine disorder manifested during, or as a result of active military service, to include as secondary to his service-connected left foot disability. In consideration of all of the Veteran's statements and reports and all pertinent medical records, the examiner is also asked to offer an opinion as to whether it is at least as likely as not that any diagnosed cervical spine disorder was either caused or aggravated beyond the natural progression by the Veteran's service-connected left foot disability. The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. The examiner is requested to also address any impact from a non-service-connected shoulder injury. An August 1969 service treatment record notes a history of shoulder separation. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 5. After completing all indicated development, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.