Citation Nr: 21008593 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 14-12 972 DATE: February 17, 2021 ORDER Entitlement to service connection for hypertension, to include as due to herbicide exposure (Agent Orange), is denied. FINDING OF FACT The Veteran’s current hypertension did not have its onset in service, did not manifest to a compensable degree within the first post-service year, and the disability is not otherwise related to an in-service injury or disease, to include Agent Orange exposure. CONCLUSION OF LAW The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1101 (3), 1110, 1112, 1113, 1116, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had two periods of active duty in the Air Force. He served the first period from October 1968 to October 1972 and received an honorable discharge. For the second period of service, from August 1975 to March 1976, he was discharged under other than honorable conditions. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran’s claim for service connection for hypertension. In May 2011, the Veteran filed a Notice of Disagreement and elected a Decision Review Officer to review his appeal. A Statement of the Case was issued in March 2014 and the Veteran perfected his appeal in April 2014. In February 2020, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In September 2020, the Board remanded the case for a medical opinion. For the reasons below, the opinion was adequate and therefore substantially complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146–47 (1999) (holding there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand, because such determination “more than substantially complied with the Board’s remand order”). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). If a veteran was exposed to an herbicide agent, such as Agent Orange, during active service, service connection will be presumed for certain diseases which are listed at 38 U.S.C. § 1116 (a)(2) and 38 C.F.R. § 3.309 (e), if the requirements of 38 C.F.R. § 3.307 (a) are met, even if there is no record of such disease during service. 38 U.S.C. § 1116 (f); 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.309(e). Specifically, the VA has determined that U.S. Air Force Veterans who served on Royal Thai Air Force Bases (RTAFBs) at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, near the air base perimeter anytime between February 28, 1961 and May 7, 1975, may have been exposed to herbicides. To warrant a finding of herbicide agent exposure at one of the above listed air bases, a veteran must have served as an Air Force security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty, performance evaluation or other credible evidence. If any of these criteria are met, exposure to herbicide agents is to be conceded on a direct basis. Entitlement to service connection for hypertension. VA treatment records reflect a diagnosis of hypertension. The current disability requirement has thus been met. In addition, the Veteran indicated in his hearing testimony that he served in Vietnam and at the perimeter in Thailand. The Veteran submitted a statement in September 2010, indicating that he served in Vietnam at Da Nang Air Force Base in 1971. The Veteran’s service personnel records confirm that the Veteran was stationed in Thailand from August 1970 to December 1970 at the Korat Air Force Base and the Takhli Royal Air Force Base, as an Aerospace Ground Equipment (AGE) repairman. He testified that his duties included working on the flight line taking AGE equipment out of planes, which sometimes took him to areas along the perimeter of the base. Neither the lay statements nor the service records definitively demonstrate whether or not the Veteran’s duties placed him at or near the perimeter of the Korat or Takhli Air Force Base. However, both, when combined with the fact that the Veteran’s reports are generally consistent with the information contained in his service records, are persuasive indicators that the Veteran’s duties placed him at or near the perimeter of at the Takhli and Korat Air Force Bases, as he claims. As the Veteran’s lay statements are both competent and credible in this regard, the evidence is at least approximately balanced on these questions at issue. The reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran. Therefore, the Veteran’s duties placed him at or near the perimeter of the Takhli Air Force Base and he is presumed to have been exposed to Agent Orange. 38 U.S.C. § 5107(b). See also 38 C.F.R. § 3.102 (benefit of the doubt applies to every point within a claim as well as to its ultimate disposition). While hypertension is not a disease listed under 38 U.S.C. § 1116 (a)(1) or 38 C.F.R. § 3.309 (e) that is presumed service connected in veterans who are exposed to Agent Orange, the Veteran may establish service connection for hypertension on a direct basis by showing that his current hypertension was caused by his presumed Agent Orange exposure. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). In addition, during the Board hearing, it was discussed that hypertension has been moved from the “limited or suggestive” category to the category of “sufficient” evidence of an association. See Veterans and Agent Orange: Update 11 (2018). In an October 2020 opinion, a VA physician’s assistant (PA) found that it was less likely than not that the Veteran’s hypertension was incurred in or caused by military service, to include exposure to herbicides. The examiner reasoned that, while medical literature shows an association between exposure to herbicides and hypertension, the medical studies are of limited value because they do not include known risk factors for hypertension like age, race, obesity, physical inactivity, family history, tobacco, and diet. She noted the Veteran’s significant history of smoking over 30 years, his use of illegal drugs, and alcohol abuse in concluding there was no nexus between the Veteran’s hypertension and herbicide exposure. As the PA considered the recent study, noted its flaw in not considering other risk factors, and explained why that flaw led to the conclusion that the other risk factors and not herbicide agent exposure, were the more likely cause of the Veteran’s hypertension, her opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). See also Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Although the Board requested an opinion from a physician, the PA made the ultimate determination required by the Board’s remand in a probative opinion, and there was therefore substantial compliance with the instruction. Cox v. Nicholson, 20 Vet. App. 563, 568-569 (2007) (a nurse, nurse practitioner, or other non-physician VA health care provider may provide competent medical evidence as long as the examination and opinions themselves are not incomplete or otherwise insufficient). There has been no challenge to the competence of the PA, Francway v. Wilkie, 940 F.3d 1304, 1307, n. 1 (Fed. Cir. 2019) (en banc) and the only issue addressed in the February 2020 appellate brief was herbicide agent exposure in Thailand, which the Board has conceded. There is no evidence of any complaints of or treatment for hypertension in the Veteran’s service treatment records and his April 1972 separation examination was normal, with a blood pressure reading of 122/78. The earliest evidence of hypertension following service is reflected in a February 2000 medical treatment record from Louisiana State University Medical Center, where the Veteran was treated for a stroke and uncontrolled hypertension. Moreover, the Veteran has not reported, and the evidence does not otherwise reflect, that he has experienced a continuity of hypertension symptomatology in the years since service. Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. However, the dispositive question presented in this case (i.e., whether any relationship exists between the Veteran’s hypertension and service, to include herbicide agent exposure in service) is a question as to internal medical processes which extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007) (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). An opinion as to whether there is a link between the Veteran’s claimed hypertension and service, where there is no evidence of any hypertension for many years after service, is one requiring specialized knowledge and testing to understand the complex nature of body systems. The Veteran has not indicated that he has such experience, therefore, his opinion on the question of nexus is not competent evidence in this instance. There is no other evidence of a relationship between the Veteran’s hypertension and service, and neither he nor his representative have alluded to the existence of any such evidence. Thus, the preponderance of the competent evidence is against a finding that the Veteran’s claimed hypertension had its onset in service or within the first post-service year, or that it is otherwise related to service to include herbicide agent exposure. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and service connection for hypertension is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.K. Donaldson, 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.