Citation Nr: 21011500 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 13-21 163 DATE: March 2, 2021 ORDER Service connection for hypertension, to include as due to herbicide agent exposure is denied. Service connection for a heart disability, to include as secondary to hypertension or herbicide agent exposure is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s hypertension began during active service or is otherwise related to an in-service injury or disease, to include his presumed exposure to herbicide agents. 2. The preponderance of evidence is against a finding that the Veteran manifested a chronic disease, as defined in 38 C.F.R. § 3.309(a), related to the heart and/or cardiovascular system within one year of his separation from active service in April 1970. 3. The preponderance of the evidence is against finding that the Veteran’s heart disability began during active service or is otherwise related to an in-service injury or disease, to include his presumed exposure to herbicide agents. CONCLUSIONS OF LAW 1. 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. 3.304, 3.307, 3.309. 2. The criteria for service connection to a heart disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from April 1968 to April 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 2014 and December 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board remanded these matters in May 2016, November 2017, and July 2019 for additional development. They have now returned to the Board for further appellate review. Originally, the Veteran file a service connection claim for coronary artery disease. The RO recharacterized the claim as one for service connection for heart murmur (claimed as coronary artery disease). In the November 2017 Board remand, the Board recharacterized the Veteran’s claim of service connection for heart murmur (claimed as coronary artery disease) to a claim of service connection for a heart disability, in part, because a June 2017 VA examiner diagnosed the Veteran with left ventricular hypertrophy. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The June 2017 examiner indicated the Veteran’s left ventricular hypertrophy was due to his hypertension. Accordingly, the Board remanded the Veteran’s claim for service connection for a heart disability because the Board found it was inextricably intertwined with his claim for hypertension, which the Board also remanded. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted when a claimed disability is found to be proximately due to or the result of a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. 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). If a claimant was exposed to an herbicide agent during active military, naval, or air service, certain diseases enumerated in 38 C.F.R. § 3.309(e) are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C. § 1116(a). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam, to include in the waters offshore of the Republic of Vietnam, during the Vietnam era between January 9, 1962, and May 7, 1975, shall be presumed to have been exposed to an herbicide agent unless there is evidence to establish the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure The Veteran contends that his hypertension is due to his active duty service, to include presumed herbicide agent exposure. While the Veteran has a current diagnosis of hypertension, and herbicide agent exposure is presumed, the preponderance of the evidence weighs against finding that the Veteran's hypertension began during service; is related to an in-service injury, event, or disease; manifest to a compensable degree within one year of leaving active duty; or is due to herbicide agent exposure. Initially, the Board notes that, while the Veteran has hypertension, which is a chronic disease under 38 C.F.R. § § 3.309 (a), it was not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. A November 2018 VA examination shows the Veteran was first diagnosed with hypertension in 2001 while a November 2016 VA examination shows the Veteran was first diagnosed with hypertension in 1978. Regardless, the record reflects the Veteran was not diagnosed, at the earliest, until 1978, which is approximately eight years after his service and seven years outside of the applicable presumptive period. Hypertension was not "noted" during service or within one year of separation and service connection under the chronic disease presumption is not warranted. See Walker, 708 F.3d 1331. In addition, the Board notes that hypertension is not a condition for which service connection is warranted on a presumptive basis under 38 C.F.R. § 3.309(e) as due to herbicide agent exposure. Notwithstanding the foregoing presumptive provisions, a Veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Board remanded this matter in May 2016, November 2017, and July 2019 for new examinations that address the 2012 National Academy of Sciences (NAS) Report, which indicated hypertension had “limited or suggestive evidence of association” to Agent Orange exposure and a more recent NAS update that changed the relationship between hypertension and Agent Orange to “sufficient evidence of an association,” which means there is enough epidemiologic evidence to conclude that there is a possible association between hypertension and herbicide agent exposure. In September 2020, VA provided the Veteran an examination to determine the nature and etiology of his hypertension, to include as due to herbicide agent exposure. The September 2020 examiner submitted an addendum opinion in November 2020. The examiner provided a detailed, well-reasoned opinion explaining why it is less likely than not that the Veteran's hypertension resulted from disease or injury in active service, to include his presumed exposure to herbicide agents. The November 2020 VA examiner acknowledged the recent NAS finding that there is "sufficient evidence" of an association between hypertension and herbicide agent exposure, but she explained the NAS finding is insufficient to establish a cause-and-effect relationship and merely suggests a link between herbicide agent exposure and the development of hypertension, which could be explained by factors other than a cause-and-effect relationship. Specifically, the examiner noted overwhelming medical evidence does not support a causal relationship between benign essential hypertension and agent orange exposure. She further noted hypertension is a very common condition among older Americans and to date there is not enough data in the medical literature to support a direct cause-and-effect relationship between hypertension and herbicide agent exposure. Moreover, she noted the Veteran’s specific risk factors for developing hypertension include his age and family history, which are significant factors and outweigh herbicide agent exposure as the cause of the Veteran’s hypertension. While the Veteran believes his hypertension is related to his active duty service, to include exposure to herbicide agents, he is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In sum, the Board finds the preponderance of the evidence is against entitlement to service connection for hypertension. The evidence fails to show the Veteran's hypertension manifested during service or within one year of separation from service. Though the Veteran is presumed to have been exposed to herbicide agents, hypertension is not a listed condition for presumptive service connection on this basis and there is no evidence of record indicating an etiological link between herbicide agents and hypertension. Therefore, the benefit-of-the-doubt doctrine does not apply, and service connection for the Veteran's hypertension is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. 2. Entitlement to service connection to a heart disability, to include as secondary to hypertension or herbicide agent exposure The Veteran contends that his heart disability is due to his active duty service, to include presumed herbicide agent exposure. While the Veteran has a current diagnosis of a heart condition, to include a heart murmur and left ventricular hypertrophy, and herbicide agent exposure has been presumed, the preponderance of the evidence weighs against finding that the Veteran's heart condition began during service or is otherwise related to an in-service injury, event, or disease, to include herbicide agent exposure. The Board notes that left ventricular hypertrophy and a heart murmur are not conditions for which service connection is warranted on a presumptive basis under 38 C.F.R. § 3.309(e) as due to herbicide agent exposure. Notwithstanding the foregoing presumptive provisions, a Veteran is not precluded from establishing service connection with proof of direct causation. Combee, supra. As noted above, the Veteran originally filed a claim for service connection for coronary artery disease, which the RO recharacterized as a claim for a heart murmur and the Board recharacterized as a claim for a heart disability. VA provided the Veteran with multiple exams to determine the nature and etiology of any heart condition he may have. In July 2014 the Veteran underwent an echocardiogram that identified a heart murmur. In October 2015, he underwent an additional examination and the examiner opined the Veteran’s heart murmur was less likely than not incurred in or caused by active duty service. The examiner reviewed the Veteran’s records, provided a thorough in person examination and indicated the Veteran’s only diagnosed heart condition was hypertension. The examiner noted the Veteran had a faint heart murmur but also noted that he underwent an additional echocardiogram in August 2015 that showed a normal heart. Specifically, the examiner noted there was no evidence of heart disease, the echocardiogram was normal, and the faint murmur was a turbulence of the blood in the saccular aneurysm of the Veteran’s aortic arch, which he is diagnosed with. VA provided the Veteran another examination in June 2017. The examiner reported that the Veteran did not have coronary artery disease or ischemic heart disease and the Veteran had not received any treatment for either condition. The examiner further reported there was no evidence of coronary artery disease or ischemic heart disease in the Veteran’s EKGs or echocardiograms. The examiner noted the Veteran did have a history of carotid artery disease, but not coronary artery disease. The examiner did note the Veteran has left ventricular hypertrophy, which the examiner indicated was due to his hypertension. The Veteran's lay assertions that his heart disability, to include a hear murmur and left ventricular hypertrophy resulted from his active duty service, to include exposure to herbicide agents are insufficient to establish his claim because he does not have the requisite skill or training to address a complex medical question such as the etiology for his hypothyroidism. See Jandreau, supra; Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see also Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010) (noting evidence that indicates that the claimant's disability may be associated with service must go beyond the claimant's own statements suggesting that such a link exists). For these reasons, the Board finds that a preponderance of the evidence is against a finding that the Veteran's heart disability, to include a heart murmur and left ventricular hypertrophy was incurred in service, is otherwise related to service, manifested within one year of service separation, to include presumed herbicide agent exposure. Accordingly, service connection for a heart disability must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. The Board further finds that the evidence weighs against a finding that the Veteran's heart disability, to include left ventricular hypertrophy is secondary to his hypertension. As noted above, the June 2017 VA examiner reported that the Veteran’s left ventricular hypertrophy was due to his hypertension. As the Board herein denies service connection for hypertension, secondary service connection for a heart disability, to include left ventricular hypertrophy is therefore not available to the Veteran. Accordingly, service connection on a secondary basis must be denied because there is no primary service-connected disability upon which secondary service connection may be granted. See 38 C.F.R. § 3.310; Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zachery S.C. Luce, 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.