Citation Nr: 21008198 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 09-34 318 DATE: February 12, 2021 ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for peptic ulcer disease is denied. FINDINGS OF FACT 1. The Veteran’s low back disability was not related to an in-service injury or disease. 2. The Veteran’s bilateral hearing loss was not secondary to service-connected disabilities, particularly including tinnitus, and was not otherwise related to an in-service injury or disease. 3. The Veteran’s hypertension was not secondary to service-connected disabilities and was not otherwise related to an in-service injury or disease, to include exposure to herbicide agents. 4. The Veteran’s peptic ulcer disease was not secondary to service-connected disabilities and was not otherwise related to an in-service injury or disease, to include exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.310. 4. The criteria for entitlement to service connection for peptic ulcer disease, to include as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is the surviving spouse of the Veteran who died in January 2016 and who served his country honorably on active duty from September 1967 to September 1970. The Veteran and the appellant testified before the undersigned at a November 2014 Board Hearing held via videoconference. A transcript is of record. In a June 2020 Board Decision and Remand, the Board remanded the above matters for additional development and readjudication. The RO has substantially complied with the Board’s remand instructions, so the Board may proceed to their merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). As discussed in the June 2020 Board Decision and Remand, the claims on appeal are being adjudicated as substitution claims, rather than as accrued benefits claims, because that provides the greatest procedural and substantive benefits to the Appellant. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). As discussed below, to the extent any of the Veteran’s claimed disabilities are included on the list of chronic diseases (e.g., arthritis of the lumbar spine, sensorineural hearing loss), the evidence is against finding that any of his disabilities were manifest to a compensable degree within the presumptive time period and is also against finding that he had a continuity of symptomatology of any of his claimed conditions from service until the period on appeal. Service connection is warranted for a veteran who has been exposed to a toxic herbicide agent during active military service (subject to the requirements of 38 C.F.R. § 3.307(a)) for diseases such as chloracne or other acneform diseases consistent with ischemic heart disease, Type 2 diabetes, Hodgkin’s disease, non-Hodgkin’s lymphoma, B-cell leukemias, porphyria cutanea tarda, prostate cancer, soft-tissue sarcomas, early-onset peripheral neuropathy, Parkinson’s disease, chloracne and respiratory cancers, and multiple myeloma. 38 C.F.R. § 3.309(e). Importantly, the definition of ischemic heart disease explicitly excludes hypertension. None of the claimed conditions are included on the list of diseases subject to presumptive service connection as due to exposure to herbicide agents. Therefore, although the Veteran is presumed to have been exposed to herbicide agents, presumptive service connection is not warranted for any of the claimed disabilities. However, the Board will still consider whether direct service connection is warranted based on the presumed exposure under the generally applicable standards for service connection. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994) (holding that VA must consider direct service connection where presumptive service connection is not warranted). Moreover, in the context of claims for secondary service connection, the evidence must demonstrate an etiological relationship between the service-connected disability or disabilities on the one hand and the condition said to be proximately due to the service-connected disability or disabilities on the other. Buckley v. West, 12 Vet. App. 76, 84 (1998). Secondary service connection may also be warranted for a nonservice-connected disability when that disability is aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Also, with regard to a claim for secondary service connection, the record must contain competent evidence that the secondary disability was caused or aggravated by the service-connected disability. See Wallin v. West, 11 Vet. App. 509 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). 1. Entitlement to service connection for a low back disability The appellant contends (and the Veteran contended) that the Veteran’s low back disability was due to in-service events including heavy lifting and in-service back symptoms. See November 2014 Board Hearing Tr. at 12. The question for the Board is whether the Veteran had a disability that began during service or was at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran had a low back disability diagnosed as L3-5 spinal stenosis, L3-S1 foraminal stenosis, and low back pain, and evidence shows that the Veteran had in-service back pain, the preponderance of the evidence weighs against finding that the Veteran’s low back disability began during service or was otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with a low back disability until January 2003, decades after his separation from service. While the Veteran is competent to report having experienced symptoms of back pain intermittently since service, see November 2014 Board Hearing Tr. at 12-13 (discussing in-service symptoms and noting: “probably all the way through, off and on, I’ve had problem with it”), he was not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of the later diagnosed back disorders. The issue is medically complex, as it requires knowledge of pathologies of the spine and the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the September 2020 VA examiner opined that the Veteran’s low back disability was not at least as likely as not related to an in-service injury, event, or disease, including lifting and lifting injuries during service. The rationale was there was no objective evidence demonstrating a connection between the in-service complaints and the delay in initial diagnosis for roughly three decades. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believed and the appellant believes that the Veteran’s low back disability was related to an in-service injury, event, or disease. The Veteran and the appellant are not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathologies of disorders of the spine, familiarity with medical literature regarding the causes of disorders of the spine and low back, interpretation of complicated diagnostic medical testing, and a detailed knowledge of anatomy. Therefore, it is outside the competence of the Veteran and the appellant in this case because the record does not show that they have the medical training or credentials to make such a determination. Consequently, the Board gives more probative weight to the September 2020 VA examiner. The greater weight of the evidence is against finding the Veteran’s low back disability during the period on appeal was related to his active service. Entitlement to service connection for a low back disability is denied. 2. Entitlement to service connection for bilateral hearing loss The appellant contends (and the Veteran contended) that the Veteran’s bilateral hearing loss was due to in-service events including exposure to loud noise during his active service. The question for the Board is whether the Veteran had a disability that began during service or was at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran had bilateral hearing loss, and VA has conceded in-service acoustic trauma, the preponderance of the evidence weighs against finding that the Veteran’s bilateral hearing loss began during service or was otherwise related to an in-service injury, event, or disease. VA treatment records and the Veteran’s testimony show that the Veteran was not diagnosed with bilateral hearing loss until the 1990s, decades after his separation from service. See November 2014 Board Hearing Tr. at 10 (noting initial diagnosis “probably in the, in the 1990s”). While the Veteran is competent to report having experienced symptoms of decreased hearing acuity intermittently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of sensorineural hearing loss. The issue is medically complex, as it requires knowledge of pathologies of the inner ear and the interpretation of complicated diagnostic medical testing. Further, the September 2020 VA examiner opined that the Veteran’s hearing loss was not at least as likely as not related to an in-service injury, event, or disease, including exposure to loud noise during service. The rationale was there were no threshold shifts during service that would support a nexus for bilateral hearing loss diagnosed many years after discharge. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. There are no competent opinions of record linking the Veteran’s bilateral hearing loss to his active service. The Veteran believed and the appellant believes that the Veteran’s bilateral hearing loss was related to an in-service injury, event, or disease. The Veteran and the appellant are not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathologies of the inner ear, familiarity with medical literature regarding the causes of disorders of hearing loss, and the interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran and the appellant in this case because the record does not show that they have the medical training or credentials to make such a determination. Consequently, the Board gives more probative weight to the September 2020 VA examiner. The greater weight of the evidence is against finding the Veteran’s bilateral hearing loss during the period on appeal was related to his active service. The appellant also contends that the Veteran’s bilateral hearing loss was caused or aggravated by his service-connected disabilities, particularly including tinnitus. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran’s bilateral hearing loss was caused by or was aggravated beyond its natural progress by service-connected disability. The Board concludes that, while the Veteran had bilateral hearing loss during the appeal period, the preponderance of the evidence is against finding that the Veteran’s bilateral hearing loss was proximately due to or the result of, or aggravated beyond its natural progression by, service-connected disability. The September 2020 VA examiner opined that the Veteran’s bilateral hearing loss was less likely than not caused by or aggravated by his service-connected disabilities. The rationale was that hearing sensitivity was within normal limits at the time of entry and time of exit from service (despite experiencing tinnitus since service, see June 2020 Board Decision ) and, further, that tinnitus is a result of hazardous noise exposure and cannot cause a primary condition (e.g., hearing loss). The examiner went on to opine that the Veteran did not have any service-connected conditions that were capable of aggravating bilateral hearing loss. The opinion is based on accurate facts and contains adequate reasoning to merit substantial probative value. Nieves-Rodriguez, 22 Vet. App. at 304. The Veteran and the appellant do not have the medical expertise to provide a persuasive opinion that his bilateral hearing loss was proximately due to or aggravated beyond its natural progression by a service-connected disability. Consequently, the Board gives more probative weight to the September 2020 VA examiner. The greater weight of the evidence is against finding that the Veteran’s bilateral hearing loss was caused by or aggravated by his service-connected disabilities. Entitlement to service connection for bilateral hearing loss is denied. 3. Entitlement to service connection for hypertension The appellant contends that the Veteran had hypertension related to his active service, including exposure to herbicide agents (e.g., Agent Orange). Alternatively, the appellant alleges that the Veteran’s service-connected disabilities caused or aggravated his hypertension. The question for the Board is whether the Veteran had a disability that began during service or was at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran had a diagnosis of hypertension, and evidence shows that the Veteran served in the Republic of Vietnam during the Vietnam Era and, so, is presumed to have been exposed to herbicide agents, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of hypertension began during service or was otherwise related to an in-service injury, event, or disease. VA treatment records first show a diagnosis of hypertension many decades after the Veteran’s separation from service. See July 2005 VA Problem List (noting diagnosis of unspecified essential hypertension in August 2001). The Veteran did not report symptoms of hypertension continuously or intermittently since his active service. He was unable to recall his first diagnosis of hypertension and could not otherwise describe the onset of hypertension or when he began taking medication for hypertension. See December 2013 DRO Hearing Tr. at 15 (“Q. …do you recall when [hypertension] was diagnosed? A. Probably when I was in the service…But I don’t know if I took any medication for it, but I’m sure…well, actually before I went in the service…when I went for my physicals, it was already high and they just made you lay down ‘til it got better…”); November 2014 Board Hearing Tr. at 16-17 (“Q. …when were you first told that you had high blood pressure? A. Oh, actually, when I went... for the initial exam, for the service, I had it... [M]y blood pressure was high, they didn’t tell me how high... [T]hat’s probably the first indication of it. So, and from then on, who knows?”) and at 18 (“Q. When did you start taking the blood pressure medicine? A. I have no idea.”). To the extent he described symptoms or reported the results of some blood pressure tests (in general terms such as “high”), he was competent to report those observations, but was not competent to diagnose the symptoms or to opine on whether any test results were valid or would support a diagnosis of hypertension. The issue is medically complex, as it requires knowledge of the cardiovascular system, the causes of high blood pressure, and the ability to interpret diagnostic blood pressure readings in the context of the readings (e.g., during an exercise stress test, etc.). Notably, his entrance examination documented systolic blood pressure of 138 and diastolic blood pressure of 75. See July 1967 Report of Medical Examination; but see July 1967 Report of Medical History (indicating a history of high or low blood pressure with the physician indicating: “B.P.: - Found to be [high or low] on various occasions”). His discharge examination documented systolic blood pressure of 106 and diastolic blood pressure of 76. See May 1970 Report of Medical Examination; see also May 1970 Report of Medical History (denying current or a history of high or low blood pressure). The Board interprets this evidence (particularly in light of the expert opinion discussed below) as indicating that, although the Veteran reported prior readings of high or low blood pressure prior to service, the actual measurements upon induction and during his service did not indicate hypertension and his exit examination failed to indicate high blood pressure or hypertension or symptoms thereof. Further, the September 2020 VA examiner opined that the Veteran’s hypertension was not at least as likely as not related to an in-service injury, event, or disease, including conceded exposure to herbicide agents. The rationale was that the Veteran’s service treatment records do not contain blood pressure readings which indicate the onset of hypertension during service or treatment with antihypertensive agents during service. The examiner acknowledged that the 2018 National Academy of Sciences Update 11 on Veterans and Agent Orange (2018) placed hypertension in the category for “sufficient evidence of an association.” However, the examiner noted there was no other medical literature which established a causal relationship between herbicide agents and hypertension. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There are no competent opinions of record linking the Veteran’s hypertension to his active service, to include exposure to herbicide agents. The Veteran believed and the appellant believes that the Veteran’s hypertension was related to an in-service injury, event, or disease. The Veteran and appellant in this case are not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body, the causes of high blood pressure, familiarity with pertinent medical literature regarding the causes of hypertension, and the interpretation of blood pressure readings in the context of the entire clinical picture. Therefore, it is outside the competence of the Veteran and the appellant in this case because the record does not show that they have the medical training or credentials to make such a determination. Consequently, the Board gives more probative weight to the September 2020 VA examiner. The greater weight of the evidence is against entitlement to service connection for hypertension on a direct basis. The appellant also contends that the Veteran’s hypertension was caused or aggravated by his service-connected disabilities, particularly including coronary artery disease (CAD) and major depressive disorder (MDD). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran’s hypertension was caused by or was aggravated beyond its natural progress by service-connected disability. The Board concludes that, while the Veteran had hypertension during the appeal period, the preponderance of the evidence is against finding that the Veteran’s hypertension was proximately due to or the result of, or aggravated beyond its natural progression by, service-connected disability. The September 2020 VA examiner opined that the Veteran’s hypertension was less likely than not caused by or aggravated by his service-connected disabilities. The rationale was that the medical literature did not indicate that either CAD or MDD were “established etiologies of [hypertension].” The examiner also noted that the Veteran’s hypertension was “within the projected natural history of the condition” and, so, there was not aggravation of the condition beyond its natural progression. The opinion is based on accurate facts and contains adequate reasoning to merit substantial probative value. Nieves-Rodriguez, 22 Vet. App. at 304. The Veteran and the appellant have contended that his hypertension was proximately due to or aggravated beyond its natural progression by a service-connected disability. The Veteran and appellant are not competent to provide a nexus opinion regarding this issue. Consequently, the Board gives more probative weight to the September 2020 VA examiner. The greater weight of the evidence is against finding that the Veteran’s hypertension was caused by or aggravated by his service-connected disabilities. Entitlement to service connection for hypertension is denied. 4. Entitlement to service connection for peptic ulcer disease The appellant contends that the Veteran had peptic ulcer disease related to his active service, including exposure to herbicide agents (e.g., Agent Orange). Alternatively, she alleges that his service-connected disabilities caused or aggravated his peptic ulcer disease. The question for the Board is whether the Veteran had a disability that began during service or was at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran had a diagnosis of peptic ulcer disease, and evidence shows that the Veteran served in the Republic of Vietnam during the Vietnam Era and, so, is presumed to have been exposed to herbicide agents, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of peptic ulcer disease began during service or was otherwise related to an in-service injury, event, or disease. VA treatment records first show a diagnosis of peptic ulcer disease many decades after the Veteran’s separation from service. See July 2005 VA Problem List (noting “personal history of peptic ulcer disease” from April 2001). The Veteran did not report symptoms of peptic ulcer disease continuously or intermittently since his active service. He was unable to recall whether he had symptoms of peptic ulcer disease during his active service. See December 2013 DRO Hearing Tr. at 16 (“Q. …your peptic ulcer disease . . . did you notice any symptoms of that while you were in service? A. . . . I don’t know it . . . I couldn’t tell you exactly to be honest . . .I couldn’t tell you that.”). He indicated that he was first diagnosed with peptic ulcer in the 1980s. See November 2014 Board Hearing Tr. at 29 (“Q. Do you remember when a doctor first said that you had an ulcer? . . . A. . . . I’m going to say in the ‘80s.”). He further suggested that the symptoms identified as a peptic ulcer might have actually been angina related to his CAD. See December 2013 DRO Hearing Tr. at 29 (testifying his symptoms in or around 2000 were “that was angina” and “it wasn’t actually reflux disease”). The issue is medically complex, as requires knowledge of the symptoms and possible causes of subjective symptoms that could be due to various physical disorders. Notably, his entrance examination and exit examinations failed to indicate any symptoms or diagnosis of a gastrointestinal disorder to include peptic ulcer disease. See July 1967 Report of Medical Examination; May 1970 Report of Medical Examination; see also July 1967 Report of Medical History (denying current or history of frequent indigestion or stomach, liver, or intestinal trouble); May 1970 Report of Medical History (same). Further, the September 2020 VA examiner opined that the Veteran’s peptic ulcer disease was not at least as likely as not related to an in-service injury, event, or disease, including conceded exposure to herbicide agents. The rationale was that the medical literature does not support finding that exposure to herbicide agents is an established etiology of peptic ulcer disease. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. There are no competent opinions of record linking the Veteran’s peptic ulcer disease to his active service, to include exposure to herbicide agents. The Veteran believed and the appellant believes that the Veteran’s peptic ulcer disease was related to an in-service injury, event, or disease. The Veteran and appellant in this case are not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body, the gastrointestinal, chest, and abdomen symptoms, and the likely etiologies and course of development of peptic ulcer disease. Therefore, it is outside the competence of the Veteran and the appellant in this case because the record does not show that they have the medical training or credentials to make such a determination. Consequently, the Board gives more probative weight to the September 2020 VA examiner. The greater weight of the evidence is against entitlement to service connection for peptic ulcer disease on a direct basis. The appellant also contends that the Veteran’s peptic ulcer disease was caused or aggravated by his service-connected disabilities, particularly including CAD and MDD. The question for the Board is whether the Veteran’s peptic ulcer disease was caused by or was aggravated beyond its natural progress by service-connected disability. The Board concludes that, while the Veteran had peptic ulcer disease during the appeal period, the preponderance of the evidence is against finding that the Veteran’s peptic ulcer disease was proximately due to or the result of, or aggravated beyond its natural progression by, service-connected disability. The September 2020 VA examiner opined that the Veteran’s peptic ulcer disease was less likely than not caused by or aggravated by his service-connected disabilities. See October 2020 VA Examiner’s Addendum Opinion (noting language in original opinion suggesting a positive opinion was in error and reiterating the rationale for the negative opinion). The rationale was that the medical literature did not indicate that either CAD or MDD were “established etiologies of [peptic ulcer disease].” The examiner further opined that the Veteran’s most recent treatment records did not demonstrate active prescriptions or current symptoms for peptic ulcer disease which suggests the condition was within its projected natural history and there was not aggravation of the peptic ulcer disease beyond its natural progression during the appeal period. The opinion is based on accurate facts and contains adequate reasoning to merit substantial probative value. Nieves-Rodriguez, 22 Vet. App. at 304. The Veteran and the appellant have contended that his peptic ulcer disease was proximately due to or aggravated beyond its natural progression by a service-connected disability. The Veteran and appellant are not competent to provide a nexus opinion regarding this issue. Consequently, the Board gives more probative weight to the September 2020 VA examiner. The greater weight of the evidence is against finding that the Veteran’s peptic ulcer disease was caused by or aggravated by his service-connected disabilities. Entitlement to service connection for peptic ulcer disease is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kerry Hubers 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.