Citation Nr: 21011235 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-18 902 DATE: March 1, 2021 ORDER Service connection for hypertension is denied. REMANDED Service connection for an eye disability is remanded. FINDING OF FACT The Veteran’s hypertension is not secondary to his service-connected type II diabetes mellitus (DM), and is not otherwise related to an in-service injury or disease, including his exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for hypertension due to service or DM are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 to February 1971. A Board hearing was held in April 2019. A transcript is of record. In January 2020, the Board remanded the matters for further development. 1. Service Connection for Hypertension The Veteran asserts his hypertension is either related to exposure to herbicide agents while he was aboard the U.S.S. Chicago or is secondary to his service-connected DM. See April 2019 Hearing Transcript, at 9-10. The Veteran has not asserted that hypertension began while he was in service. Id. To establish a right to compensation for a present disability, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran has hypertension. See, e.g., May 2014 VA Examination Report; June 2020 Examination Report; November 2020 VA Examination Report. The Board must therefore determine whether his hypertension is either related to his service or is secondary to his service-connected DM. Considering the Veteran’s assertion that his hypertension was caused by exposure to herbicide agents, if a veteran was exposed to an herbicide agent during service in Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, certain enumerated diseases shall be presumptively service-connected, even where there is no record of such disease during service, provided that the disease is manifested to a compensable degree as set forth in 38 C.F.R. § 3.307, and the rebuttable presumption provisions of 38 C.F.R. § 3.307 are met. See 38 C.F.R. § 3.309(e); see also 38 C.F.R. § 3.307 (a)(6)(ii). However, the VA Secretary has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice: Diseases Not Associated with Exposure to Certain Herbicide Agents, 61 Fed. Reg. 59232 (Nov. 2, 1999). In its June 2020 rating decision, the Agency of Original Jurisdiction (AOJ) conceded the Veteran was exposed to herbicides while aboard the U.S.S. Chicago when it was in Da Nang Harbor in October 1970, and the Veteran’s herbicide exposure is not in dispute. However, hypertension is not listed as a disease for which presumptive service connection is possible and therefore service connection is not warranted on a presumptive basis. See 38 C.F.R. § 3.309 (e). Notwithstanding the foregoing presumptive provision, a claimant is not precluded from establishing service connection for disability due to herbicide agent exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Board concludes that, while the Veteran has a current diagnosis of hypertension, and evidence shows that the Veteran was exposed to herbicide agents while in service, the preponderance of the evidence weighs against finding that the Veteran’s hypertension began during service or is otherwise related to an in-service injury, event, or disease, including his presumed exposure to herbicide agents. The November 2020 VA examiner opined that the Veteran’s hypertension was less likely than not related to his in-service herbicide exposure. The examiner reviewed the Veterans and Agent Orange: Update 11 (2018) from the National Academies of Science, Engineering and Medicine and noted the “the committee determined that there is sufficient evidence of an association between at least one of the [chemicals of interest] and hypertension.” But the examiner opined that association is not causation. The examiner explained that when considering the relationship between exposures and health outcomes, it is important to distinguish between association and causation. Association is a specified health outcome more likely in people with a particular “exposure” and is a statistical relationship between two variables. Whereas causation means that the exposure produces the effect. The examiner stated causation was not claimed by the National Academies of Science, Engineering and Medicine, regarding hypertension. The examiner explained that the Veteran was first diagnosed with hypertension in August 2006, 35 years after his exposure to an herbicide agent and there was nothing to indicate a causal relationship between herbicide exposure and the development of 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). The Veteran believes his hypertension is related to his in-service herbicide exposure. But he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between past chemical exposure and the later development of a disease of the cardiovascular system. Therefore, it is outside the competence of the because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiner’s opinion. Turning next to the Veteran’s second contention, 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 Board concludes that the preponderance of the evidence is against finding the Veteran’s hypertension is proximately due to or the result of, or aggravated beyond its natural progression by, his service-connected DM. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). VA examiners in May 2014 and June 2020 noted the Veteran was first diagnosed with both hypertension and DM in 2006 at approximately the same time. Both examiners also opined that hypertension was less likely than not caused or exacerbated by DM, explaining that there was no evidence that the Veteran’s DM had resulted in any renal complications, which is the mechanism by which DM causes or exacerbates hypertension. The June 2020 VA examiner further opined that the Veteran’s hypertension had not been aggravated beyond its natural progression, explaining that while the Veteran had initially been treated with two medications, over time and with weight loss, the Veteran was able to control his DM with only one medication had no emergency visits or hospitalizations. The Veteran believes his hypertension is either proximately due to, the result of, or has been aggravated beyond its natural progression by his service-connected DM. The Veteran, however, is not competent to provide a nexus opinion regarding this issue. It is medically complex and requires knowledge of the interaction between multiple organ systems in the body and the pathology of hypertension. The record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiners’ opinions. Upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the claim for service connection for hypertension and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. REASONS FOR REMAND 1. Eye Disability There has not been substantial compliance with the Board’s previous remand directives regarding the claim for service connection for an eye disability. The November 2020 VA examiner noted, but did not discuss, the Veteran’s assertion that he wore an eye patch during basic training, and gave no opinion addressing the Veteran’s herbicide exposure or his assertion his disabilities resulted from being outside as a Boatswain’s Mate during service. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain an additional opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s eye disabilities. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After a review of the claims file, and examination of the Veteran if deemed necessary by the reviewing clinician, the reviewing clinician is asked to respond to the following inquiries: (a.) Identify with specificity all eye disabilities that are currently manifested, or that have been manifested at any time since July 2013. (b.) For each eye disability that is currently manifested or that has been manifested at any time since July 2013, the reviewing clinician should opine whether it is at least as likely as not that any eye disability was either incurred in, or is otherwise related to, the Veteran’s military service, to include exposure to an herbicide agent. The reviewing clinician should also address the Veteran’s contention that his eye disability is related to being outside as a Boatswain’s Mate during service. See August 2014 notice of disagreement. The reviewing clinician should also address the Veteran’s April 2019 testimony that he had to wear an eye patch on his left eye “for quite a while” during boot camp. (c.) The reviewing clinician should also opine whether it is at least as likely as not that any eye disability was caused OR aggravated by the Veteran’s service connected diabetes. 2. Then readjudicate the claim. If any benefit sought is not granted, the Veteran and his representative should be furnished an SSOC and given the requisite opportunity to respond before the case is returned to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mine, 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.