Citation Nr: 21006049 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 13-15 442 DATE: February 3, 2021 ORDER Service connection for hypertension is denied. REMANDED Service connection for the issues of a spinal tumor, gait instability, neurogenic bladder dysfunction, neurogenic bowel incontinence, peri-rectal pain, acute post-operative pain, and neuropathic pain. FINDINGS OF FACT 1. The Veteran had active duty from May 1968 to May 1972, to include service in the Republic of Vietnam from December 1968 to December 1969, with additional service in the Iowa Army National Guard. He was stationed at Camp Lejeune in August 1968 and from January to September 1970. 2. Hypertension was not shown in service, was not continuous since service, was not shown to a compensable degree within one year of separation from service, was not shown for many years after service, and is not causally or etiologically related to service. CONCLUSION OF LAW Hypertension was not incurred in service, may not be presumed to have been incurred in service, nor is it due to in-service exposure to herbicide agents or contaminated water. 38 U.S.C. §§ 1101, 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION As an initial matter, the claim for hypertension was remanded by the Board in May 2019 for additional development, including a VA examination. An examination was requested in December 2019; however, later that month, the examination was cancelled at the Veteran’s request. The record does not indicate that he subsequently requested a new examination be scheduled. Accordingly, the appeal has now been returned to the Board for further appellate action and the decision will be made based on the evidence of record. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to herbicides if a veteran (1) served in the Republic of Vietnam between January 1962 and May 1975, (2) served April 1968 and August 1971 in or near the Korean Demilitarized Zone, (3) served near the base perimeter of certain Thailand Air Force Bases during the Vietnam War era, or (4) regularly and repeatedly operated, maintained, or served aboard aircraft known to have been used to spray a herbicide agent during the Vietnam War Era. 38 C.F.R. § 3.307(a)(6). Finally, service connection may also be granted on a presumptive basis for certain diseases associated with exposure to contaminated water at Camp Lejeune if a veteran, former reservist, or member of the National Guard shows: (1) that he or she served at Camp Lejeune for no less than 30 consecutive or nonconsecutive days between August 1, 1953 and December 31, 1987; (2) that he or she currently suffers from a disease associated with exposure to contaminants in the water supply at Camp Lejeune enumerated under 38 C.F.R. § 3.309(f); and (3) that the current disease manifested to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(7), 3.309(f). This presumption may also be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. Notwithstanding the foregoing provisions regarding presumptive service connection for exposure to herbicide agents and contaminated water, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As an initial matter, hypertension is a chronic disease under 38 C.F.R. § 3.309(a); therefore, presumptive service connection will be considered. Additionally, as the Veteran asserts that hypertension is a result of exposure both to Agent Orange while serving in the Republic of Vietnam and contaminated water while stationed at Camp Lejeune, presumptive service connection on the basis of exposure to herbicide agents and contaminated water will be addressed. Finally, direct and secondary service connection will be considered. Turning first to direct service connection, the Veteran has been diagnosed with hypertension. Specifically, an April 2013 VA examination diagnosed hypertension. Therefore, a current disorder has been shown and the first element of service connection has been met. A review of the service treatment records (STRs) shows that the Veteran served in the Republic of Vietnam between December 1968 and December 1969. The STRs further reveal that he was stationed at Camp Lejeune in August 1968 and from January 1970 to September 1970. However, hypertension was not noted in his May 1972 separation examination and he reported in an associated Report of Medical History that he then-presently or previously did not have high or low blood pressure. The STRs are otherwise absent for complaints, diagnoses, or treatment of hypertension. As such, hypertension was not noted in the STRs, an in-service incurrence has not been established, and the medical evidence does not support service connection on a direct basis. Turning to the one-year presumption, hypertension did not manifest to a compensable degree within a year of separation from service. In September 2004 a medical treatment note indicated that the Veteran was being treated for high blood pressure. In a subsequent January 2005 medical treatment note, a clinician reported that the Veteran had a history of severe hypertension. An April 2013 VA examination found that he was first diagnosed with hypertension in the 1990s. Even assuming that he developed symptoms of hypertension as early as 1990, this is well outside the one-year legal presumption for certain chronic diseases such as hypertension. Next, the record does not establish continuity of symptomatology under 38 C.F.R. § 3.309(a). As noted above, the evidence shows that the Veteran’s symptoms began as early as 1990, 18 years after separation from service. Therefore, hypertension was not shown until 1990, with documentation beginning in 2004. In light of the above, the medical evidence weighs against the appeal on the basis of chronicity/continuity. With regard to presumptive service connection based on exposure to herbicides, the Veteran served in the Republic of Vietnam and exposure to herbicides is presumed. Nonetheless, service connection is not, by regulation, warranted on a presumptive basis due to herbicide exposure for hypertension. 38 C.F.R. § 3.309(e). Recent disorders added to the list did not include hypertension. Therefore, the evidence service does not support the appeal based on presumed exposure to herbicides. With regard to presumptive service connection based on exposure to contaminated water at Camp Lejeune, the Veteran has confirmed service at Camp Lejeune in August 1968 and from January to September 1970. As such, exposure to contaminated water is conceded. However, hypertension is not included on the list of diseases associated with exposure to contaminants in the water supply at Camp Lejeune under 38 C.F.R. § 3.309(f). Therefore, the evidence does not support service connection for hypertension on the basis of presumed exposure to contaminated water. Notwithstanding the inapplicability of the Agent Orange and contaminated water presumptive service connection regulations, the Board has considered the claim on a direct causation basis. Combee v. Brown, 34 F.3d 1039, 1042-44 (Fed. Cir. 1994). As noted above, there were no in-service complaints of, treatment for, or diagnosis related to hypertension. While post-service records address the current status of hypertension, no medical professional has established a direct causal relationship between hypertension and herbicides exposure or contaminated water at Camp LeJeune. Specifically, in an April 2013 VA examination, the Veteran reported that he thought his blood pressure levels were elevated due to pain prior to his May 2010 spinal cord surgery. He noted that following his surgery, his pain improved, and his blood pressure was well controlled with medication. Moreover, the medical treatment notes of record do not establish a direct causation relationship between hypertension and/or herbicide exposure or contaminated water. Accordingly, the medical evidence does not support service connection on a direct causation basis due to in-service exposure to both Agent Orange and contaminated water. Further, the evidence does not support service connection secondary to a spinal tumor. At this juncture, the Veteran is not service connected for a spinal tumor. Therefore, the appeal with respect to secondary service connection must be denied as a spinal tumor is not currently service connected. The Board has considered lay statements submitted by the Veteran and his wife regarding the etiology of hypertension. Lay witnesses are competent to report symptoms and describe their observations because this requires only personal knowledge as it comes to them through their senses. However, they are not competent to offer an opinion as to the etiology of any current disorder due to the medical complexity of the matter involved. Such competent evidence has been provided by the medical personnel who have examined the Veteran during his current appeal and by service and medical records obtained and associated with the claims file. Here, the Board attaches greater probative value to the clinical findings than to the lay statements that have been submitted. Based on the above, the appeal is denied as to the Veteran’s hypertension. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND In May 2019, the Board denied service connection for a spinal tumor, gait instability, neurogenic bladder dysfunction, neurogenic bowel incontinence, peri-rectal pain, acute post-operative pain, and neuropathic pain. The Veteran appealed to the Veterans Claims Court. In March 2020, the Court Clerk granted a Joint Motion for Partial Remand (JMPR), thereby vacating the Board’s decision as to the seven denied claims. Pursuant to the JMPR, another medical opinion consistent with the Court’s findings in Polovick v. Shinseki, 23 Vet. App. 48 (2009) (statistical analysis alone cannot be used to deny service connection) is needed to address the etiology of the Veteran’s spinal tumor. Therefore, further development is required. Turning to the Veteran’s gait instability, neurogenic bladder dysfunction, neurogenic bowel incontinence, peri-rectal pain, acute post-operative pain, and neuropathic pain, the claims are inextricably intertwined with the pending claim asserting service connection for a spinal tumor detailed above. Therefore, action on the appeal will also be remanded will also be remanded in light of the above. The matters are REMANDED for the following actions: 1. Identify and obtain all pertinent, outstanding VA and private treatment records not currently of record and associate them with the claims file. 2. Direct the claims file to a clinician for an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s spinal tumor is etiologically related to service, to specifically include in-service exposure to Agent Orange and to contaminated water at Camp Lejeune. 3. A rationale for all opinions must be provided; however, the clinician is advised that rationales based solely on statistical analyses in medical literature are inadequate. A description of the causes of the Veteran’s type of tumor would be most helpful to the Board. 4. If the clinician determines that an examination is necessary in order to provide the requested opinions, then one should be scheduled. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Spigelman, 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.