Citation Nr: 21010736 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-05 808 DATE: February 25, 2021 ORDER Service connection for hypertension, to include as due to in-service herbicide exposure or as secondary to the service-connected diabetes mellitus, type II (DMII) or service-connected lung cancer, is denied. FINDING OF FACT The Veteran’s hypertension is not due to his military service, to include his in service exposure to herbicide agents, and is not due to his service-connected DMII or his service-connected lung cancer. CONCLUSION OF LAW The criteria for service connection for hypertension, to include as a result of in service herbicide exposure or as secondary to the service-connected diabetes mellitus, type II (DMII) or the service-connected lung cancer, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1969 to March 1971, with service in the Republic of Vietnam. In April 2018, he testified before the undersigned Veterans Law Judge of the Board of Veterans’ Appeals (Board). A transcript of that hearing is of record. This case was remanded for additional development in July 2018 and July 2020. As those remand directives have been satisfied, the Board will proceed with adjudication of this matter. Service Connection -- Hypertension Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Service connection may also be established on a secondary basis for a disability which is “proximately due to or the result of a service-connected disease or injury.” 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show the following: (1) that a current disability exists and (2) that the current disability was either proximately caused by or proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a non-service-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id.; 38 C.F.R. § 3.310(b). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(c), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff’g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). When all the evidence is assembled, VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the current appeal, the Veteran contends that his hypertension is related to his military service, to include his conceded exposure to herbicide agents. Alternatively, he contends that his hypertension was caused by his DMII or lung cancer, which are both service-connected disabilities. The Veteran served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975 and is presumed to have been exposed during such service to an herbicide agent. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(iii). Although hypertension is not one of the enumerated diseases subject to presumptive service connection under 38 C.F.R. § 3.309(e), it is still necessary to analyze the Veteran’s claim for direct causation. See Combee, supra. As an initial matter, the Veteran has a current diagnosis of hypertension, as documented in private treatment records and VA examination reports. The Veteran’s April 1969 enlistment examination report shows a blood pressure reading of 110/70. His service treatment records (STRs) are negative for a diagnosis of, or treatment for, hypertension while in service. His January 1971 separation physical examination report shows a blood pressure reading of 110/60, reflecting a lower reading than that which was recorded at the time of enlistment. At the September 2019 VA examination, the Veteran reported that he was not diagnosed with hypertension until 2003, approximately 32 years after he left service. After indicating that he thoroughly reviewed the Veteran’s records, a November 2020 VA examiner opined that the Veteran’s hypertension is not related to service and that there is no evidence of hypertension while the Veteran was in service, or at separation. The examiner referred to the Veteran’s blood pressure reading at separation, which was 110/60 as well as the September 2019 VA examination report, where the Veteran indicated that his hypertension onset in 2003. The examiner concluded that it is less likely than not that the Veteran’s hypertension is related to service, to include conceded exposure to herbicide agents. The examiner acknowledged the National Academy of Sciences 2018 study which suggests an association between Agent Orange and hypertension but explained that the study did not establish causation. The examiner explained that current and widely accepted peer-reviewed literature has not established Agent Orange as a cause of hypertension. Thus, he reiterated that it is less likely than not that the Veteran’s hypertension is due to in-service exposure to Agent Orange. The November 2020 examiner also opined that the Veteran’s hypertension is less likely than not proximately due to, or the result of, a service-connected disability, to include DMII and lung cancer. The examiner noted that it is accepted medical knowledge and practice that lung cancer does not cause or aggravate hypertension. He acknowledged that, while some chemotherapy can be toxic to the kidney, the Veteran’s September 2019 VA examination report for respiratory illnesses noted a short course of chemotherapy, which was discontinued due to leukopenia. The examiner explained that there is no evidence of renal damage due to chemotherapy. He emphasized that, in the absence of evidence to the contrary, it is less likely than not that the Veteran’s lung cancer caused his hypertension. The examiner further explained that this rationale applies to aggravation as well, noting that lung cancer did aggravate the Veteran’s hypertension. As to the relationship between the Veteran’s hypertension and DMII, the November 2020 examiner noted that there is none. He stated that the Veteran was diagnosed with hypertension in 2003, and diabetes in 2002, but that there is no evidence of renal dysfunction until 2012, as documented in multiple records. The examiner explained that, although diabetes preceded the diagnosis of hypertension, hypertension cannot be attributed to diabetes in the absence of diabetic nephropathy, which was not documented until 2012. The examiner noted that there is no etiology given for the Veteran’s nephropathy. However, he explained that, even if he gives the Veteran the benefit of the doubt as to the cause of the nephropathy being due to diabetes, the nephropathy was clearly not present at the onset of hypertension. Therefore, the examiner reiterated, hypertension cannot be attributed to diabetes. He emphasized that this is a medical fact. The examiner also noted that, although the Veteran has nephropathy, and even giving him the benefit of the doubt that it is due to diabetes, there is no evidence of aggravation of his hypertension beyond its natural course, due to any cause. He referred to the Veteran’s average blood pressure reading of 120/60 and explained that it is due to the natural course of the disease worsening over time. He also noted that the Veteran’s hypertension is well-controlled and that changing dosage or addition of medications does not necessarily constitute aggravation beyond the natural course of the disease. The examiner explained that several of the Veteran’s medications are used for both his hypertension and cardiac disease. He concluded that it is less likely than not that the Veteran’s hypertension has been aggravated by lung cancer or diabetes. The examiner cautioned that the Veteran may be at risk for aggravation due to nephropathy but reiterated that aggravation has not occurred. He stated that hypertension can damage the kidneys as well. Based on the above, the Board finds that the Veteran’s hypertension is not related to his military service, to include his exposure to herbicide agents. The Board also finds that the Veteran’s hypertension is not secondary to the service-connected DMII or service-connected lung cancer. The Board notes that ischemic heart disease is presumed to be a result of exposure to herbicide agents. See 38 C.F.R. § 3.309(e). However, ischemic heart disease does not include hypertension. See id. at n.2. Thus, hypertension is not presumed to be related to herbicide exposure. Regarding service connection on a direct basis, the Board finds the most probative evidence of record shows that the Veteran did not sustain an in-service disease or injury that caused hypertension. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As previously stated, the Veteran had a normal blood pressure reading at separation from service. There is also no evidence to indicate that the Veteran had hypertension within a year of leaving service. As reported by the Veteran, he was not diagnosed with hypertension until 2003, approximately 32 years after he left service. See Board hearing transcript at 5. There is simply no competent and probative evidence to show that the Veteran had hypertension during service—and no competent and probative evidence that his current hypertension is related to such active duty. In addition, the November 2020 VA examiner explained that a review of medical literature does not support a finding that the Veteran’s hypertension was caused by exposure to herbicide agents in service. With respect to secondary service connection, the Board finds that the Veteran’s hypertension was not caused by, aggravated by, or proximately due to, the service-connected DMII or service-connected lung cancer. In making this determination, the Board assigns probative weight to the opinion of the November 2020 VA examiner. The examiner thoroughly reviewed the Veteran’s claims file and considered the Veteran’s report of symptoms and medical history. The VA medical opinion is probative because it is based on an accurate medical history and provides an explanation that contains a clear conclusion and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the Veteran’s lay statements, including his Board hearing testimony, indicating that his hypertension resulted from exposure to herbicide agents, or is secondary to his service-connected DMII or service-connected lung cancer. However, the Board does not assign much probative weight to these statements because a determination as to the etiology of a disability such as hypertension is medically complex, requiring specialized medical education, knowledge of the interaction between multiple organ systems in the body, and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). Here, the Veteran is not shown to have the medical training to render competent opinions about such complex medical matters. See id.; see also Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Consequently, the Board finds that the weight of the evidence is against a finding of service connection for hypertension, to include as due to in service exposure to herbicide agents, or as secondary to the service-connected DMII or the service-connected lung cancer. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56. Thus, entitlement to service connection for hypertension is denied. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Trowers, 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.