Citation Nr: 21005622 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 15-13 601 DATE: February 2, 2021 ORDER Entitlement to service connection for hypertension, to include as secondary to the service-connected disabilities of diabetes mellitus type II (DM) and anxiety disorder and/or as due to herbicide exposure, is denied. FINDING OF FACT The Veteran's hypertension is not secondary to his service-connected diabetes mellitus type II or anxiety, and is not otherwise related to his active service, to include herbicide agent exposure. CONCLUSION OF LAW The criteria for service connection for hypertension, including as due to herbicide agent exposure and secondary to service-connected diabetes mellitus type II or anxiety, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1965 to December 1985. The Board of Veterans’ Appeals (Board) remanded the claims in November 2017 and January 2017. Then, in June 2019, the Board denied the hypertension service connection claim. The Veteran appealed the decision to the United States Court of Appeals for Veterans’ Claims (Court). In an April 2020 Joint Motion for Remand (JMR), the parties agreed that the Board did not adequately address potentially relevant evidence and the theory of direct service connection. Accordingly, in July 2020, the Board remanded the claim for more opinions. The claim is now returned before the Board. Service Connection and Secondary Service Connection To establish entitlement to service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Certain chronic diseases, including cardiovascular-renal disease, are considered chronic, per se, and therefore may be presumed to have been incurred in or aggravated by service if they become manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); 38 C.F.R. § 3.310. When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for hypertension, to include as secondary to the service-connected disabilities of diabetes mellitus type II (DM) and anxiety disorder and/or herbicide exposure, is denied. For the reasons fully discussed below, the claim for entitlement to service connection for hypertension is denied. (1) Current Disability As an initial matter, the Board notes that the Veteran has a current diagnosis of hypertension. See July 2007 Naval Medical Center medical record; June 2013 Naval Medical Center medical record. Therefore, the current disability requirement is met. (2) In-service Injury The second element is also met. The Veteran reports that his hypertension had its onset in service or in the alternative, was caused by his in-service exposure to herbicides. Here, the Veteran’s service treatment records show that he had elevated blood pressure readings in service. See November 1985 Service Examination; January 1977 Service Treatment Record; March 1971 Service Treatment Record. Moreover, his in-service exposure to herbicides has been conceded by VA. See, e.g., October 2010 Rating Decision (finding the Veteran served in the official waters of Vietnam during the relevant time period). (3) Nexus Unfortunately, even though more than one theory of entitlement was considered, the Board finds that the third element of service connection, the nexus, is not met. For the following reasons, there is no nexus based on either a presumptive or direct basis. i) Presumptive Service Connection As an initial matter, hypertension is a condition that is considered chronic, and therefore, will be presumed to have been incurred in service if it manifested to a compensable degree (meaning to at least 10 percent disabling) within one year after discharge from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Moreover, since hypertension is a chronic condition according to § 3.309(a), service connection may be established alternatively under § 3.303(b) if it was first noted during his service and he has experienced continuous symptoms associated with it ever since. Walker v. Shinseki, 708 F.3d 1331 (2013). Based on the evidence of record, the Veteran was not diagnosed with hypertension until 2004. See June 2013 medical treatment records; June 2013 Naval Medical Center letter. Thus, there is no indication that the Veteran had hypertension during service or eleven months after he left service. See also Maxson v. Gober, 230 F.3d 1330 (2000) (finding that a prolonged period without medical complaint, and the amount of time that elapsed since service can be a factor for consideration in rebutting the presumption of service connection). The Board acknowledges that the Veteran’s service treatment records show that he had elevated blood pressure readings while in service. See November 1985 Service Examination; January 1977 Service Treatment Record; March 1971 Service Treatment Record. However, the Board finds persuasive the August 2020 VA medical opinion, in which the VA examiner concluded that the Veteran’s elevated blood pressure readings while in service was not indicative of hypertension or hypertension have its onset in service. The August 2020 VA examiner specifically stated in relevant part: The Veteran’s documented blood pressures in service from 1965 to 1985 reveal no trend towards hypertension. Isolated elevated BPs from 1971, 1977, and 1981 were not sustained, and [the Veteran’s] documented BPs from later in 1981 through 1985 at retirement were all normal, indicating that hypertension was not developing. Later BPs from 1993 were also all normal; BPs from 1994 revealed intermittent elevations in systolic BP readings; then there is documentation of hypertension in 2004. This chronology of his record does not suggest that his eventual diagnosis of hypertension in 2004 would be temporally related to his military service. Rather, this trend indicates that his advancing age played a significant role in his development of hypertension. . . . [A] trend towards hypertension was not noted in service. Hypertension is characterized as persistent and chronic elevation in blood pressure - this was not demonstrated in service, therefore the large time period of 19 years between separation from service and diagnosis of hypertension makes his hypertension less likely to be temporally related to service, especially since evidence of continuity from service is also lacking. For this reason, the few isolated elevated blood pressures from earlier in his active duty service would not be considered an early manifestation of his hypertension, in my opinion. Had there been persistent and chronic elevations in blood pressures documented throughout his service (and especially around retirement) and continuously post-service then his hypertension could be related to service - but this was not demonstrated and is therefore not the case. August 2020 VA medical opinion. Furthermore, even though the Veteran is competent to report symptoms that come through his own senses, he is not competent to medically attribute his any such symptoms to hypertension, as such an etiology determination requires medical expertise, which the record shows he does not have. Thus, chronicity and continuity of the hypertension since service is not established. See 38 C.F.R. § 3.159 (a)(1) versus (a)(2); King v. Shinseki, 700 F.3d 1339, 1345 (2012). In sum, based on the record, the Veteran’s hypertension did not manifest during or within the year after his separation from service, and the evidence of record does not establish that his continuous symptomatology is associated with his current hypertension. He is therefore not entitled to service connection on a presumptive basis, including on the basis of continuity of symptomatology. ii) Direct Service Connection, to include conceded in-service herbicide exposure As an initial matter, the Board notes that hypertension is explicitly excluded from those diseases listed in 38 C.F.R. § 3.309(e) for which service connection may be presumed in the case of certain herbicide exposed veterans. Nevertheless, the Veteran in this case may prove actual causation of hypertension due to herbicide exposure. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). However, for the following reasons, the Board finds the Veteran is not entitled to service connection for hypertension on a direct basis because there is no competent evidence that the Veteran's hypertension is related to his service, including his conceded in-service herbicide exposure. Per the April 2020 JMR and Court order, in July 2020, the Board remanded the claim for adequate etiology opinions, which were obtained in August 2020. The Board finds persuasive the August 2020 VA medical opinion, in which the examiner opined that the Veteran’s hypertension was less likely than not incurred in or otherwise related to service, including his conceded in-service exposure to herbicides. The examiner concluded so because, as fully written about above, the examiner finds that in this specific case, the Veteran’s hypertension is age-related, with no ties to his active duty service. In fact, here, the examiner also stated that in his opinion, the Veteran’s hypertension would have developed post-service regardless of his conceded herbicide exposure due to the Veteran’s advancing age. The Board acknowledges that in the latest January 2021 Appellate Brief, the Veteran’s representative raised relevant medical literature on the issue of hypertension in connection with herbicides, specifically The National Academy of Sciences Institute of Medicine’s Veterans and Agent Orange: Update 11 (2018). The Veteran’s representative asserted that this literature “concluded that there is sufficient evidence of an association between the chemicals of interest (COIs) and hypertension.” However, the August 2020 VA examiner had already explicitly addressed and considered this specific medical literature. The examiner stated that despite this literature finding sufficient evidence of an association between at least one of the COIs and hypertension, “in the press release of this update, they specifically commented: ‘A finding of limited or suggestive evidence means that epidemiologic research results suggest an association between exposure ot herbicides and a particular outcome, but a firm conclusion is limited because chance, bias, and confounding factors could not be ruled out with confidence.” Moreover, the examiner connected this medical literature to the Veteran’s specific situation, and stated: In the context of this veteran, his treatment medical records reveal that he was diagnosed with hypertension in 2004. He was 64 years of age at that time, which is a relatively older age. It is well-established in the peer-reviewed medical literature that advancing age is a significant risk factor for hypertension, especially systolic hypertension more so than diastolic hypertension; for example, the following studies clearly reference this fact: Postgrad Med J. 2007 Feb; 83(976): 109–114. "Blood pressure and ageing" Hypertension. 2001 Mar;37(3):869-74. "Predominance of isolated systolic hypertension among middle-aged and elderly US hypertensives: analysis based on National Health and Nutrition Examination Survey (NHANES) III." His available documented BPs from 2007 onward document primarily systolic hypertension, which is consistent with advancing age influencing this development. . . .[T]his trend indicates that his advancing age played a significant role in his development of hypertension, and most likely played a more significant role and factor in development of hypertension compared to his herbicide exposure, given what is published in the medical literature to date and given how his blood pressure readings have manifested (primarily systolic vs diastolic elevations). Therefore, his hypertension is less likely than not incurred in or caused by his herbicide exposure. Moreover, it is of my opinion that his hypertension likely would have developed post-service regardless of his herbicide exposure for the same reasons I have mentioned (advancing age). August 2020 VA medical opinion. Given that there is no evidence the examiner was not competent or credible, and as the opinion is based on a thorough review of the file, the Board finds this opinion entitled to probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-301 (2008). There are also no competent private or VA medical records on file that provide contrary findings to the August 2020 VA negative etiology opinion. The Board acknowledges the November 2010 VA examination report on file, in which the examiner stated in the subjective complaints medical history section that the Veteran “does have hypertension and difficult to control blood pressure, which has been present dating back to the time of service and at least as long as he had his diabetes mellitus.” See November 2010 VA examination report. However, there was no rationale provided for this conclusory opinion. Therefore, the Board finds this medical record, to the extent that it may be considered an etiology opinion, inadequate, and therefore entitled to minimal probative weight. Additionally, there are no private or VA medical records on file that provide any findings that conflict with the August 2020 VA negative etiology opinion. Based on the objective medical evidence of record, the Veteran was not diagnosed with hypertension until 2004. See June 2013 medical treatment records; June 2013 Naval Medical Center letter. Finally, the Board acknowledges that the Veteran contends that his hypertension was incurred in or caused by his service, including his conceded in-service herbicide exposure; however, the record does not demonstrate that the Veteran has special training in or acquired any medical expertise. While lay persons are competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), the Board finds the specific issue here (i.e., the etiology of hypertension) falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Thus, the Veteran's lay statements, to the extent that they pertain to the potential etiology of his hypertension, are entitled to minimal probative weight. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (lay testimony in general is not competent to prove that which would require specialized knowledge or training). Thus, as the negative VA opinion carries more probative weight, the preponderance of the evidence weighs against a finding that the Veteran's current hypertension is related to his service. As such, service connection is denied on a direct basis. iii) Secondary Service Connection The Veteran also contends that his hypertension is secondary to his already service-connected diabetes mellitus, type II, or his service-connected anxiety. The Veteran has satisfied the first two elements of a current disability and a currently service-connected disability. See May 2017 Rating Codesheet (showing the Veteran is service-connected with diabetes mellitus, type II, and adjustment disorder with depressed mood). However, there is no adequate nexus between the currently-diagnosed hypertension and the Veteran's service-connected diabetes mellitus, type II, and adjustment disorder with depressed mood. The Board finds persuasive the August 2020 VA medical opinion, in which the examiner opined that the Veteran’s hypertension was less likely than not caused or related to or underwent any incremental increase in disability regardless of its permanence due to the service-connected diabetes mellitus, type II, and adjustment disorder with depressed mood. The examiner’s stated reason is that hypertension can only develop as secondary to diabetes mellitus, type II, if end-stage diabetic chronic kidney disease is present, as it is an essential intermediary step between diabetes and hypertension. In this Veteran’s case however, he does not have (and has never had) chronic kidney disease, diabetic nephropathy, or end-stage diabetic CKD. In fact, his renal function has historically been normal and is currently normal (most recent eGFR from Dec 2019 was 111, which indicates excellent normal kidney function). Moreover, as fully discussed above, the examiner opined that the Veteran’s hypertension is more likely than not age-related as opposed to anything else. The examiner also stated that neither the diabetes mellitus, type II, or psychiatric disability caused any incremental increase, regardless of its permanence, in the hypertension. This is because “impairment or functional limitation as it pertains to this veteran's hypertension is not present.” Specifically, the examiner stated: Upon review of the veteran's medical records, he has historically required 1-2 blood pressure medications at a time for management, which is typical and standard for BP control independent of any secondary variables, and he is currently requiring 1 blood pressure medication for treatment, which has been the case for several years. One or two antihypertensive medications for hypertension management would not be considered ‘an incremental increase in disability.’ Moreover, there is no evidence of end-organ damage from hypertension in this veteran. August 2020 VA medical opinion. Given that there is no evidence the examiner was not competent or credible, and as the opinion is based on a thorough review of the file, the Board finds this opinion entitled to probative weight. See Nieves-Rodriguez, 22 Vet. App. at 300-301. Additionally, there are no private or VA medical records on file that provide any findings that conflict with the August 2020 VA negative etiology opinion. Finally, the Board acknowledges that the Veteran contends that his hypertension is related to the Veteran’s service-connected diabetes mellitus, type II, and/or hypertension; however, the record does not demonstrate that the Veteran has special training in or acquired any medical expertise. While lay persons are competent to provide opinions on some medical issues (see Kahana, 24 Vet. App. at 435), the Board finds the specific issue here (i.e., the etiology of hypertension) falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377. Thus, the Veteran's lay statements, to the extent that they pertain to the potential etiology of his hypertension, are entitled to minimal probative weight. See Layno, 6 Vet. App. at 470. Thus, as the negative VA opinion carries more probative weight, the preponderance of the evidence weighs against a finding that the Veteran's current hypertension is related to his service-connected diabetes mellitus, type II, or psychiatric disability. As such, secondary service connection is denied. Conclusion Based on the above, the Board finds that service connection for hypertension is not warranted on either a presumptive, direct, or secondary basis. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. 38 U.S.C. § 5170(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (2001); Gilbert, 1 Vet. App. at 55-57. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Cho, 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.