Citation Nr: 21011743 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 09-36 884 DATE: March 2, 2021 ORDER Entitlement to service connection for hypertension is granted. Entitlement to service connection for gout is denied. REMANDED Entitlement to service connection for a cardiovascular disorder, claimed as cardiovascular accident, Entitlement to service connection for a cerebral vascular accident or stroke is remanded. FINDINGS OF FACT 1. The Veteran is presumed exposed to herbicides; the Veteran’s hypertension is shown to be related to such. 2. The most probative evidence of record demonstrates that the Veteran’s gout did not have its onset during service and is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for gout are not met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102; 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from October 1965 to October 1968 and from January 1969 to January 1971. The Veteran had active service in the Republic of Vietnam; therefore, the presumption that he was exposed to herbicide agents, to include Agent Orange, is applicable. 38 U.S.C. § 1116, 38 C.F.R. § 3.307(a)(6). This matter comes to the Board of Veterans’ Appeals (Board) on appeal from March 2007 and July 2007 rating decisions by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). This matter was previously remanded by the Board in August 2015 for additional development. The Veteran unfortunately passed away in August 2016. The Appellant is the Veteran’s surviving spouse, and in April 2020, the RO recognized her as the substitute for the Veteran. In May 2020, VA opinions were obtained. In October 2020, the Board again remanded the matters for additional medical opinions. Such were obtained in December 2020. The claim is once again before the Board. Regarding the gout issue, substantial compliance with the Board’s prior remand orders is demonstrated. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Regarding the hypertension issue, the Board finds that the rationales provided in both medical opinions are inadequate, but that further effort at development would be futile. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in November 2006 and May 2007. The RO associated the Veteran’s service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary medical opinions were completed, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. Although the medical opinion addressing hypertension was inadequate, as the Board is granting service connection, the Appellant is not prejudiced. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The appellant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§1101(3), 1112(a); 38 C.F.R. §§3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Cardiovascular disease, to include hypertension, is a listed condition, with a presumptive condition of one year following separation from service. Service connection can also be established based on herbicide agent exposure. 38 C.F.R. § 3.307(a)(6). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during such service to an herbicide agent containing dioxin, such as Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). If the veteran is presumed to have been exposed to herbicide agents, the veteran is entitled to a presumption of service connection for certain disorders. See 38 C.F.R. §3.309(e). Hypertension is not specifically identified on this list. Nevertheless, the availability of presumptive service connection for a disability based on exposure to herbicides pursuant to 38 C.F.R. § 3.307(a)(6) does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. See Bostain v. West, 11 Vet. App. 124, 127 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Hypertension The Veteran had a diagnosis of hypertension, establishing the existence of a present disability. In May 2020, a medical opinion addressing hypertension was obtained. The examiner found that the Veteran’s service treatment records did not show that hypertension had its onset within one year of the Veteran’s separation from either period of active service. However, the examiner failed to consider whether the Veteran’s hypertension was due to his herbicide exposure. This examination was found to be inadequate; in the October 2020 remand, the Board sought an additional medical opinion addressing this, specifically including reference to the National Academies of Sciences, Engineering, and Medicine (NAS) 2018 finding that there was “sufficient” evidence of an association between herbicide agent exposure and hypertension. See Veterans and Agent Orange: Update 11 (2018) In December 2020, another hypertension opinion was obtained. The examiner found that there was no evidence showing that a diagnosis of hypertension was suspected or diagnosed while on active duty or within one year of separation. On these grounds, she concluded that no direct service connection exists. This was essentially a reiteration of the May 2020 finding. The Veteran was also asked to provide an opinion as to whether hypertension was at least as likely as not related to service, including the Veteran's exposure to herbicide agents. In concluding that there was no nexus between the Veteran’s hypertension and herbicide exposure, the examiner relied on recent studies showing only an association with hypertension and veteran’s assigned to the Chemical Corps who had high exposure to herbicides, showing no association with veteran’s who had other military occupational specialties (MOS). This is not the NAS study the Remand referred to. The examiner concluded that “appreciable accumulation” of TCDD from Agent Orange would have occurred in Veterans whose MOS brought them into direct contact with liquid herbicide, rather than those who had incidental exposure. However, this opinion was inadequate. The negative opinion is based on a higher standard for herbicide exposure than is currently necessary under regulation. Direct contact with liquid herbicide is not necessary in order determine that a Veteran has been exposed to herbicide. The NAS study the examiner was directed to consider was based on all herbicide exposed Veterans, and not simply those actively involved with spraying. As noted above, under 38 C.F.R. § 3.307, the Veteran has already met the criteria for exposure to herbicide based on his service in Vietnam. Accordingly, although VA examiners have offered two negative nexus opinions, the first did not consider a nexus between the Veteran’s hypertension and herbicide exposure. The second was based upon a rationale that is inconsistent with current regulations regarding herbicide exposure. As such, these opinions are not probative. However, the logic applied by the December 2020 examiner, that exposure to sufficient herbicides would likely cause hypertension, is valid. Accordingly, the evidence of records shows that the Veteran was presumed to have been exposed to herbicides in-service, and, as noted in the October 2020 remand, there is “sufficient” evidence of an association between herbicide-agent exposure and hypertension. The December 2020 medical opinion endorses the fact of such connection. The evidence requires an award of service connection for hypertension. Gout The Veteran was diagnosed with chronic gout in July 2006 private treatment records. However, there was some ambiguity in the record as to the chronicity of this condition. For example, in VA treatment records from July 2010, it was noted that the Veteran’s last gout attack was 38 years prior. In the May 2020 gout opinion, the examiner found that the Veteran did not have a diagnosis for gout. However, in this same opinion, the examiner also noted that the Veteran was not clinically diagnosed nor noted until well after the Veteran had served on active duty. The examiner stated that the Veteran apparently had a gout attack once, but it resolved spontaneously. He stated that no lab work could be found to confirm the claimed condition. In the October 2020 remand, the examiner was instructed to clarify whether the record indicates that there was an active case of gout at any point during the period on appeal, and if so, whether it was at least as likely as not related to service, including exposure to herbicide agents. In December 2020, a new gout opinion was obtained. The examiner opined that while on active duty, there were no suspicions or concerns for gout, and that no nexus exists. The examiner further concluded that there is currently no medical evidence or literature showing that exposure to Agent Orange causes gout, and that no nexus to active duty or Agent Orange exposure exists. As such, although the examiner appears to have conceded that the Veteran had a gout diagnosis, the examiner also determined that there was no nexus to service. No gout was noted in service, and the first mention of the disability was not until July 2006 private treatment records. Furthermore, the December 2020 opinion provides that the Veteran’s current gout was unrelated to his active service, to include herbicide exposure. No medical evidence to the contrary has been presented. Accordingly, the preponderance of the evidence is against the claim. As such, entitlement to service connection for gout is not warranted. REASONS FOR REMAND In prior decisions, the issues of service connection for coronary artery disease (CAD) and cerebrovascular accident (CVA) have been addressed as a single issue. It seems that in filing his claim, the Veteran used inaccurate or imprecise language, and to ensure that all his contentions were addressed, both heart and brain conditions have been considered. However, this has led to further confusion and the insufficiency of some medical evidence. To avoid further such problems, the conditions will henceforth be addressed separately. Coronary Artery Disease (CAD) The Veteran’s private treatment records reflect that the Veteran has had a CAD diagnosis since September 2002. Although the Veteran was not found to have a diagnosis for CAD in the January 2011 VA ischemic heart disease (IHD) examination, private treatment records from June 2016 show a finding of “probable coronary disease.” This diagnosis was also listed as a significant condition contributing to death on the Veteran’s death certificate. As such, an additional VA opinion is necessary in order to clarify whether the Veteran had a diagnosis for CAD and address whether the Veteran’s CAD was related to service, his presumed in-service herbicide exposure, or service-connected disabilities. Cerebrovascular Accident (CVA) In light of the determination that CVA should be addressed as a separate issue, a clear, additional medical opinion should be obtained with regard to it. Further, clarification is required following the December 2020 medical opinion. The remand instructed that examiner consider whether a cardiovascular disorder, claimed as cardiovascular accident and addressed as cerebral vascular accident or stroke, was at least as likely as not related to service, including the Veteran’s exposure to herbicide agents. However, on the December 2020 medical opinion, this question was phrased as “Does the Veteran have a diagnosis of a cardiovascular disorder that is at least as likely as not (50 percent or greater probability) incurred in or caused by (the) cardiovascular disorder during service?” In response to this, the examiner found that there were no suspicions or concerns for a cardiovascular accident on active duty, noting that the CVA occurred in 2001, which was well after active duty. The examiner addressed the question as to whether a CVA occurred while the Veteran was on active duty, rather than whether the CVA that occurred post-service was related to his active duty service. Accordingly, a new medical opinion addressing whether the Veteran’s October 2001 CVA and the residuals associated with this incident are related to service, his presumed in-service herbicide exposure, or service-connected disabilities, should be obtained. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion to determine the nature and etiology of the Veteran’s CAD. The claims folder must be reviewed in conjunction with the examination. The examiner must confirm whether or not the Veteran had a CAD diagnosis, and opine as to whether such a diagnosis was at least as likely as not caused or aggravated by service, to include presumed herbicide exposure, or a service-connected disability, to include hypertension. 2. Obtain a VA medical opinion to determine the nature and etiology of the Veteran’s CVA. The claims folder must be reviewed in conjunction with the examination. The examiner must opine as to whether the CVA and its associated residuals were at least as likely as not caused or aggravated by service, to include presumed herbicide exposure, or a service-connected disability, to include hypertension. 3. Then, readjudicate the claims. If the benefits sought remain denied, the Appellant should be provided a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.P. Faris 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.