Citation Nr: 21007236 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-50 941 DATE: February 9, 2021 ORDER Entitlement to service connection for hypertension is denied. FINDING OF FACT The Veteran's hypertension was not incurred in, caused by, or otherwise etiologically related to service; nor was it proximately due to exposure to an herbicide agent, such as Agent Orange, during service or any service-connected disability. CONCLUSION OF LAW The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from July 1968 to May 1970. He received the Combat Infantryman Badge, among other decorations, for this service. This matter comes before the Board of Veterans Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. The Board previously considered this appeal in March 2018, December 2019 and August 2020, and remanded this issue for further development. The requested actions have been completed by the AOJ, with no further action necessary to comply with the Board's remand directives, so this case is once again before the Board for further appellate consideration. The Board therefore find substantial compliance with the August 2020 remand as the requested medical opinions have been obtained. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection Service connection will be granted for disability resulting from disease or injury incurred or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence establishing three elements: (1) the existence of a present disability; (2) in-service incurrence or aggravation of disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disorder. See 38 C.F.R. § 3.310(a) (2017); Allen v. Brown, 7 Vet. App. 439 (1995). VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e) (2018). A Veteran who had a period of active service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a) (2018). The last date on which a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. If a Veteran was exposed to an herbicide agent during active service, the diseases enumerated at 38 C.F.R. § 3.309(e) shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii) (2018). However, Note 2 of 38 C.F.R. § 3.309(e) states that, for purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of Ischemic heart disease. For VA compensation purposes, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. Note (1) provides that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 1. Entitlement to service connection for hypertension The Veteran contends that his current hypertension is causally related to his service in Vietnam, to include as due to herbicide agent exposure, as secondary to his service-connected COPD, or as secondary to his service-connected PTSD. The Veteran has consistently reported that while in Vietnam, he came into regular contact with Agent Orange, and VA has conceded that the Veteran was exposed to herbicide agents during his service in Vietnam. Hypertension, however, is not a disease identified as presumptively associated with herbicide exposure. 38 C.F.R. § 3.309(e). Nevertheless, the statutory and regulatory provisions governing presumptive service connection for certain diseases deemed to be associated with herbicide exposure is a legal consideration rather than a medical consideration. Meaning, the exclusion of hypertension from the list of disabilities for which a presumption may be assigned does not preclude a grant of service connection on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Initially, the Board recognizes that the Veteran has a current diagnosis of hypertension. See April 2019 VA examination. The VA examiner noted an approximate date of diagnosis in 2014. The Veteran’s available service treatment records show that his blood pressure during the April 1968 entrance examination was 122/70 and that he denied a history of high or low blood pressure. On his April 1970 separation medical examination his blood pressure was 124/62. In April 2019, the Veteran was afforded a VA examination which culminated in a report declining to find a nexus between the Veteran’s hypertension and his exposure to herbicide agents in Vietnam, to his service-connected PTSD, or to his service-connected COPD on the following grounds: (1) the Veteran was not diagnosed with hypertension until 2011; (2) the record is silent for any evidence that the Veteran had hypertension during service or within one year following his separation from service in 1970; (3) the “two conditions [of hypertension and COPD and depression] are not medically related. The claimed disorder is a separate entity entirely from the service-connected condition and unrelated to it;” (4) “The medical literature does not support a medical relationship,” as hypertension “has not been shown by research to be aggravated by COPD or depression;” (5) hypertension is “not at least as likely as not aggravated beyond its natural progression by” the Veteran’s COPD or PTSD/depression as “research shows that [hypertension] and depression share common pathways and it is possible that each disease has an impact on the natural history of the other. (citations omitted.) There is no evidence that the Veteran had [hypertension] during service nor one year after service, he was diagnosed in 2011.” As explained in its December 2019 and August 2020 remands, the Board found that the medical etiology opinion obtained in April 2019 is inadequate. The Board noted that the conclusory statements in the opinion failed to provide the sort of detailed rationale required to determine whether a direct or secondary finding of service connection is warranted in this case, or why an association between herbicide agent exposure and hypertension does not provide support a finding of service connection for the Veteran’s hypertension. Moreover, the Board noted that the language of the rationale is facially contradictory to the extent the report finds no causal relationship between hypertension and depression after noting the possibility that depression and hypertension have “an impact on the natural history of the other” as they “share common pathways.” Further, the Board found that a medical opinion should be obtained that considers the National Academy of Sciences (NAS) report “Veterans and Agent Orange,” which found “sufficient” “epidemiologic evidence to conclude that there is a positive association” between hypertension and exposure to herbicide agents. See NAS, Institute of Medicine, Veterans & Agent Orange: Update 11 (2018) (the 2018 NAS Study). In February 2020 a new medical opinion was obtained as to the etiology of the Veteran’s hypertension. The VA doctor opined that the Veteran’s hypertension is less likely than not causally related to the Veteran’s service, but as rationale stated only that the Veteran’s hypertension was idiopathic in nature and there is no medical plausible evidence in a medical text book, UptoDate, or the general medical consensus to support a nexus. The VA doctor did not specifically discuss the Veteran’s presumed exposure to herbicide agents in Vietnam or comment on the 2018 NAS Study. The doctor also opined that the Veteran’s hypertension is less likely than not causally related to or aggravated by the Veteran’s service-connected PTSD, as rational stating only that the medical literature does not support a medical relationship. The examiner did not discuss the statement in the 2019 medical opinion that hypertension and depression share common pathways and it is possible that each disease has an impact on the natural history of the other disease. In its August 2020 remand, the Board found that the February 2020 medical opinion did not comply with the December 2019 remand directives and thus, it is also inadequate. In September 2020, a new examiner offered an addendum to the previously rendered opinions. The VA doctor opined that the Veteran’s hypertension is less likely than not causally related to the Veteran’s service. The rationale provided is that the Veteran's separation exam documented his blood pressure as 124/62, that all other blood pressures were recorded in the normal range, and that the Veteran was diagnosed with hypertension in 2008, at the age of 62, with a recording of 140/90, which additionally does not meet criteria for service connection. The doctor opined that it was less likely than not that the Veteran’s in-service herbicide agent exposure in Vietnam caused or aggravated (permanently worsened) his hypertension. The doctor provided the following rationale: The National Academy of Sciences' Veterans and Agent Orange: Update 11(2018) states that there is now sufficient evidence of an association between hypertension and at least one of the COIs. “The committee responsible for Update 2006 first concluded that the available evidence placed hypertension in the limited or suggestive category... Additional evidence reviewed in Update 2008, Update 2010, Update 2012, and Update 2014 reaffirmed this conclusion.” (1) According to the 2018 report, “Owing to its frequency, assessing whether there is increased risk (of hypertension) with exposure to the COIs has been challenging. However, the committee for the current update believes that there are enough new data to move the category of association to sufficient evidence.” The report states that “Cypel et al. (2016) offers the most compelling evidence for the change.” (1) This was a cohort study that looked at self-reported physician-diagnosed-hypertension in Army Chemical Corps veterans who sprayed defoliant in Vietnam. The study concluded that occupational herbicide exposure history and Vietnam-service-status were associated with hypertension risk. (2) However, while this study (by Cypel et al.) reported an ASSOCIATION between hypertension and agent orange, there is no current evidence of agent orange CAUSING hypertension. The authors state that “causal relationships cannot be inferred because this study was cross-sectional.” They also point out several limitations of the study. “It should be noted that exposure and outcome prevalence for non-respondents and deceased veterans may differ from study respondents” Furthermore, the study controlled for some, but not all, of the risk factors for hypertension. Since “these variables were not evaluated,” “their impact on the resultant association (are) unknown.” (2) According to the medical literature, “hypertension is the most common primary diagnosis in the United States... A National Health Examination Survey (NHANES) spanning 2011-2014 revealed that 34% of US adults aged 20 years and older are hypertensive.” (3) The “CDC estimates that in the United States, 64% of men and 69% of women ages 65–74 years have hypertension.” (1) This corresponds to the veteran's age at the time of diagnosis. Primary or essential hypertension accounts for 90-95% of adult cases, and secondary hypertension accounts for 2-10% of cases. (3) Advancing age, weight, family history, race, salt and alcohol consumption, and physical inactivity are the primary risk factors for hypertension. (4) In summary, this [V]eteran has other risk factors for hypertension such as advancing age, family history, race and physical inactivity. Furthermore, while there may be sufficient evidence for an ASSOCIATION between hypertension and herbicide exposure, there is no evidence of CAUSATION and hypertension is NOT a presumptive service-connected condition for Agent Orange. Regarding Aggravation the veteran was first diagnosed with hypertension in year 2008. A remote history agent orange exposure would not worsen his hypertension beyond its normal progression. Thus: it is less likely than not that the veteran's in-service herbicide agent exposure in Vietnam caused or aggravated (permanently worsened) his hypertension. (References omitted) Regarding secondary service connection, the September 2020 doctor opined that the Veteran’s hypertension is less likely than not proximately due to or the result of chronic obstructive pulmonary disease (COPD) (also claimed as re-occurring pneumonia). The doctor referred the Board to his “direct medical opinion above regarding hypertension not caused by COPD.” Regarding aggravation, the doctor opined that it is less likely than not that the Veteran's COPD aggravated (permanently worsened) his hypertension, he reasoned that the Veteran was first diagnosed with hypertension in year 2008, at age 62. The Veteran has other risk for hypertension to include advancing age, being male, inactivity. Additionally, the VA doctor opined that the Veteran's hypertension is less likely than not proximately due to or the result of his service-connected PTSD. The rationale provided is that the veteran was first diagnosed with essential hypertension in clinic in 2008, the two conditions are not medically related, and the hypertension is a separate entity from the PTSD. The examiner added that the Veteran has separate risk factors for hypertension to include sex, advanced age and inactivity. Regarding the 2019 examination report and the article quoted, the 2020 VA doctor commented that “the examiner incorrectly concluded “it is possible that each disease has an impact on the natural history of the other.” Instead, the article concluded that “it is reasonable to consider (screening for) depression in hypertensive patients (and hypertension in depressive patients) (20) Guerra, Lopez, Nuevo 2013. While the article may indicate that there is an association between hypertension and depression, it did not show causation. The study did not conclude cause and effect… Although research suggests a relation between PTSD and hypertension, the American Heart Association (2014) maintains that “stress is not a confirmed risk factor for high blood pressure (BP).” Virtually all PTSD-hypertension research has been cross-sectional (excepting Schnurr et al., 2000); longitudinal research is ... needed to demonstrate more convincingly that PTSD increases risk of, rather than is a consequence of, hypertension. Additionally, knowledge of mediating factors is limited. Mediating behavioral risk factors are likely given a sizeable proportion of incident hypertension can be reduced by addressing health behaviors, such as diet and exercise (Forman et al., 2009), and PTSD has been associated with obesity and unhealthy behaviors (e.g., Zen et al., 2012; Kubzansky et al.,2014).” The Board acknowledges the lay statements made by the Veteran that his hypertension is related to service. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (i.e., experiencing symptoms either in service or after service). See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, a layperson without the appropriate medical training and expertise is simply not competent to provide a probative opinion on a complex medical matter, such as an etiological relationship between any current disability and military service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). (Continued on the next page)   After reviewing the totality of the record, the Board finds that the VA examinations are the most probative evidence of record. As stated, all three examiners have indicated that the Veteran's hypertension is less likely than not related to his time in service, as due to agent orange exposure, and to include as secondary to his COPD or PTSD. The September 2020 VA doctor provided detailed rationales for the opinions offered and explained how the evidence does not show that agent orange is a catalyst for hypertension. The most probative evidence does not establish a nexus to service. Considering the lack of other evidence connecting the Veteran's hypertension to his service, the claim must be denied. The Board concludes that the preponderance of the evidence is against the claim for service connection and the benefit of the doubt rule does not apply. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Romero-Sanchez, 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.