Citation Nr: 21006376 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 12-05 104A DATE: February 4, 2021 ORDER Entitlement to service connection for hypertension, to include as secondary to asbestos exposure, is denied. REMANDED Entitlement to service connection for lung cancer, to include as secondary to asbestos exposure, is remanded. Entitlement to service connection for brain cancer, to include as secondary to lung cancer, is remanded. Entitlement to service connection for hemiplegia of the left lower extremity, to include as secondary to brain cancer is remanded. Entitlement to service connection for hemiplegia of the right lower extremity, to include as secondary to brain cancer, is remanded. Entitlement to service connection for seizures, to include as secondary to brain cancer, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that any diagnosed hypertension is etiologically related to any aspect of active service, to include exposure to asbestos. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.655. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1974 to February 1975. The Veteran passed away in August 2011. The Appellant, the Veteran’s surviving wife, has been substituted as the claimant in this case. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active service or, if pre-existing active service, was aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after separation from service, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Direct service connection requires evidence of a current disability; an in-service disease or injury; and a nexus between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disability; (2) a service-connected disability; and, (3) evidence establishing a connection between the service-connected disability and the current disorder. 38 C.F.R. § 3.310. Service connection may also be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309(a). Hypertension is a chronic condition in which can be presumptively service-connected if manifest to a compensable degree within one year following separation from service. Therefore, a claim based on continuity of symptomatology must be considered. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA has acknowledged that a relationship exists between asbestos exposure and the development of certain diseases, which may occur 10 to 45 years after exposure. VAOPGCPREC 04-2000 (Apr. 13, 2000). However, the pertinent guidelines of service connection in asbestos-related cases are not substantive rules, and there is no presumption that a veteran was exposed to asbestos in service. See Dyment v. West, 13 Vet. App. 141 (1999), aff’d, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); see also VAOPGCPREC 04-2000. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993); Wood v. Derwinski, 1 Vet. App. 190 (1992). With any piece of evidence, the credibility and weight to be assigned to the opinions are within the province of the Board as the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467 (1993). When there is an approximate balance of positive and negative evidence regarding a material issue, in resolving each issue, reasonable doubt shall be resolved in favor of the claimant. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); 38 C.F.R. § 3.102. Only if the Board determines that the preponderance of the evidence is against the claim, will the claim be denied. 1. Entitlement to service connection for hypertension, to include as secondary to asbestos exposure The Veteran, prior to his death, and now the Appellant, claims that the Veteran’s hypertension was due to exposure to asbestos during active service. Alternatively, they claim that hypertension was caused by the stress he experienced during service. Having considered the entire record of evidence, both lay and medical, the Board finds that the preponderance of evidence is against the claim for service connection for hypertension. Review of the Veteran’s service treatment records (STRs) are negative for clinical findings or diagnoses related to hypertension. The Board notes that the VA acquired two separate VA opinions regarding the etiology of the Veteran’s hypertension, in October 2019 and September 2020. In the initial October 2019 opinion, the VA examiner, after a noted review of the Veteran’s claims file and medical history, ultimately concluded that the Veteran’s hypertension was not etiologically caused by any stress related to his short period of active service. To this end, the examiner not only accounted for the Veteran’s claimed stress during active service, but also noted the lack of any medical evidence in the Veteran’s service treatment records (STRs) that demonstrates that the Veteran suffered from any type of elevated blood pressure during his active service, or upon separation. The examiner also highlighted no evidence of hypertension were noted of record until “many years” after the Veteran’s active service. As such, the examiner found that it was less likely than not that any aspect of active service was the cause of the Veteran’s development of hypertension. Additionally, the VA examiner comprehensively laid out the extensive risk factors that also contributes to the development of hypertension. Specifically, the examiner found that it was more likely than not that hypertension, prior to his death, was due to the Veteran’s more than 35 years of smoking, alcohol abuse, and obesity. The examiner pointed out that factors such as age, race, and family history also contributed to the Veteran’s development of this condition. With regards to exposure to asbestos, the VA obtained an addendum opinion in September 2020 that spoke to the potential effects of exposure to asbestos, as it related to hypertension. Ultimately, the VA examiner found that it was less likely than not that any exposure to asbestos during active service was etiologically related to the Veteran’s ultimate development of hypertension. The examiner explicitly and comprehensively laid out the risk factors of exposure to asbestos, which did not include causing hypertension. As such, the examiner concluded that it was more likely than not that the Veteran’s hypertension was caused by other factors such as his smoking history, alcohol use, age, family history, and obesity. On review of the record, the Board finds that the preponderance of the evidence is against the claim. The record does not show that that Veteran had hypertension during active service or for many years thereafter. The STRs do not show a diagnosis of hypertension or chronic elevated blood pressure readings, with no evidence of a diagnosis of hypertension until decades after separation from service. Moreover, the competent and credible medical evidence does not show that the Veteran’s hypertension is etiologically related to his service, to include the claimed in-service exposures. As such, the Board finds that the VA opinions of record is of high probative value. The Board finds that that VA opinions are well reasoned, detailed, and consistent with the lay and medical evidence of record. Prejean v. West, 13 Vet. App. 444 (2000). Both VA examiner sufficiently discussed the underlying medical rationale of the opinion, which is where the probative value of the opinion is derived. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Green v. Derwinski, 1 Vet. App. 121 (1991). To this end, the Board find that other than these opinions, no medical evidence, to include VA and private treatment records, reveal any opinions regarding the etiology of the Veteran’s hypertension; and no contrary, positive nexus opinion has been provided by the Appellant. Therefore, as there is no competent evidence of record establishing a link between active service and hypertension, entitlement to service connection for hypertension is not warranted. The Board finds that although the Veteran, and the Appellant, contends that the Veteran’s hypertension was due to service, they are not competent to make that conclusion. Although lay persons are competent to provide opinions on some medical issues, the issue of whether hypertension is related to service, service exposure to herbicide agents, or a service-connected disability falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board accords significantly more weight to the medical evidence than to lay assertions. Even considering the lay statements with regard to the matters they are competent to address, the most probative evidence weighs against the claim of entitlement to service connection for hypertension. Therefore, the Board finds that the medical evidence of record is more persuasive because of the training, experience, and rationales provided by the examiner. Finally, the Board does recognize that hypertension is subject to service connection based upon continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the Board notes that the Veteran’s separation examination showed normal blood pressure readings upon separation, with no evidence of diagnosis or treatment until decades later. Therefore, the evidence does not show continuity of symptomatology since service. In addition, service connection on a presumptive basis for chronic disease is also not warranted as the evidence does not show hypertension manifested to a compensable degree within one year following separation from service. The Board finds that the preponderance of the evidence of record indicates that the Veteran’s hypertension was not shown in service or for many years thereafter, is not related to service or exposure to asbestos during service. Accordingly, service connection for hypertension must be denied. 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for lung cancer, to include as secondary to asbestos exposure is remanded. With regard to the claims for service connection for lung cancer, the VA acquired a VA addendum opinion in October 2019, to assess the nature and etiology of the claimed disability. The Board, after a thorough review of the opinion, finds several deficiencies that make the VA opinion incomplete and inadequate. VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the medical evidence is incomplete, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Specifically, the Board finds that while the examiner addressed the probable etiology of the Veteran’s lung cancer, with regards to risk factors such as smoking and alcohol use, the examiner’s opinion did not address, or reconcile, its negative findings with that of the acquired atopsy performed on the Veteran. The Board notes that after the Veteran’s death, a medical autopsy was performed on his body, and in the medical report was an opinion that concluded that the Veteran lung condition was in part due to a “history of asbestos exposure”. However, the most recent VA opinion is silent on any reference on such countervailing medical finding. As such, the Board must find that the October 2019 nexus opinion to be inadequate. Additionally, the Board points out that in the last remand directive from the Board explicitly directed the VA examiner to speak to and reconcile any opinion with that of the autopsy report. Therefore, as such the opinion also failed to substantially comply with the last remand directive, remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to service connection for brain cancer, to include as secondary to brain cancer is remanded. 3. Entitlement to service connection for hemiplegia of the left lower extremity, to include as secondary to brain cancer is remanded. 4. Entitlement to service connection for hemiplegia of the right lower extremity, to include as secondary to brain cancer is remanded. 5. Entitlement to service connection for seizures, to include as secondary to brain cancer is remanded. 6. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Finally, because a decision on the above remanded issue of service connection for lung cancer, could significantly impact a decision on the issue of brain cancer, hemiplegia, seizures, and a TDIU, the issues are inextricably intertwined, and remand of the claims are required. Harris v. Derwinski,1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: 1. Associate with the record any VA medical records not already of record of treatment of the Veteran. 2. Make an effort to confirm the presence of asbestos in the barracks of Forts Leonard Wood (in 1974 and 1975), Rio Vista (from 1974 to 1980), and Eustis (in 1977). Document efforts for the file. 3. Forward the file to an appropriate examiner who has expertise in asbestos-related disease, or if such expert is not available, to a medical profession familiar with cancer (e.g. oncologist). The examiner must review the claims file and should note that review in the report. The examiner is asked to provide an opinion on whether it is as likely as not (50 percent or greater) that the Veteran’s lung cancer is related to asbestos exposure during his active service. The examiner is advised that such exposure during service has not been conceded, and must consider the Veteran’s pervious medical records, to include the August 2011 autopsy, to conclude an opinion whether such asbestos exposure existed during service, and to what level of exposure. Any opinion or conclusion provided must include a detailed and medically based rationale that explicitly reconciles, and speaks, to the August 2011 autopsy and the lay contentions by the Veteran and the Appellant regarding exposure. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ziheng Zhu, 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.