Citation Nr: 21013786 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 17-13 633 DATE: March 10, 2021 ORDER Entitlement to service connection for hypertension (hypertensive vascular disease) based on exposure to herbicide agents is denied. FINDING OF FACT 1. The Veteran served in the Korean demilitarized zone (DMZ) during the period June 1967 through July 1968 and is, thus, presumed to have been exposed to herbicide agents while in service. 2. The Veteran has current diagnosis of hypertension. 3. The Veteran’s hypertension (hypertensive vascular disease) did not originate in service or until years thereafter, and is not otherwise etiologically related to service. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from December 1966 to December 1968, to include service in the Republic of Vietnam. This matter is on appeal to the Board of Veterans’ Appeals (Board) from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In February 2020, the Board remanded the case for further development, to include a VA examination. The Board finds that the agency of original jurisdiction (AOJ) complied with the mandates of the Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to service connection for hypertension (hypertensive vascular disease) based on exposure to herbicide agents Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing, (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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also 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) (2016). Certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree within a specified period following discharge from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service, except for chloracne and acute and subacute peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service, the Veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307, 3.309(e). Veterans who, during active service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.§ 1116B; 38 C.F.R. § 3.307(a)(6)(iv); see also 38 C.F.R. § 3.814(c)(2). The fact that a Veteran cannot establish entitlement to service connection on a presumptive basis does not preclude him from establishing entitlement on a direct incurrence or other basis. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.304 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Lay assertions may also serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a) (2016); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) “although interest may affect the credibility of testimony, it does not affect competency to testify”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3. In consideration thereto, the Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background The Veteran seeks service connection for hypertension (hypertensive vascular disease) based on exposure to herbicide agents while in active service. The Veteran asserts that his military occupational specialty (MOS) was a radio mechanic and he was in an area in the Korean DMZ where agent orange and/or other defoliants were used. He testified that while serving as a radio mechanic, he was exposed to herbicides while installing radios in the motor pool in the DMZ and that he did not use gloves during the installations. He further testified that the area surrounding the motor pool had been sprayed with chemicals that killed the vegetation and this contributed to his herbicide exposure. Military personnel records show the Veteran served with the U.S. Army Pacific (USAPAC) in Korea from June 1967 through July 1968 and was assigned to the 2nd Infantry Division. His DD-214 indicates that his MOS was senior radio mechanic. Service treatment records do not indicate any complaints, treatment, or symptoms related to hypertension. Specifically, on his February 1966 entrance examination, his blood pressure was 136/80; in a February 1967 medical history report, the Veteran indicated no treatment for high blood pressure; and on his November 1968 exit examination, the Veteran’s blood pressure was 145/85. Post service medical records show that the Veteran was diagnosed with hypertension in his late forties (40s), was prescribed Lisinopril-Hydrochlorothiazide for hypertension treatment, and was diagnosed with coronary artery disease in 2016. A February 2020 VA examiner opined that the Veteran’s hypertension was less likely than not incurred in or caused by active service. The examiner further opined that the Veteran has a familial history of hypertension and is more susceptible to have acquired the disease based on his age and weight. At this examination, the Veteran reported that his blood pressure is controlled with medication and denied hospitalization for blood pressure related events such as stroke or myocardial infarction. At the examination, the Veteran’s blood pressure readings were 148/85, 151/87 and 151/88. The examiner opined that the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more. At an April 2020 VA examination, the Veteran reported some shortness of breath and generalized activity intolerance. During metabolic equivalent testing (MET), the Veteran reported dyspnea and fatigue, and his METs level was found at 5-7 METs, consistent with walking a flight of stairs or mowing the lawn. The Veteran reported no congestive heart failure, cardiac arrhythmia, heart valve conditions, infectious heart conditions, pericardial adhesions, surgical/non-surgical procedures nor hospitalization for the treatment of a heart condition. The examiner considered the evidence of record to include the Veteran’s subjective complaints and opined that these symptoms are mostly like due to the Veteran’s prostate cancer and treatment and not Agent Orange herbicide exposure. The examiner also reviewed results of an echocardiogram, a November 2016 stress test with abnormal findings (an no further details provided), and an undated cardiac catherization report which indicated 30 and 40 percent occlusions in the right ventricular marginal artery and left anterior descending artery, respectively. An August 2020 echocardiogram indicated left ventricular ejection fraction of sixty-five to seventy (65-70) percent with normal wall motion and thickness, and normal size and function of the right ventricle. The examiner observed mild bi-atrial enlargement and the right ventricular systolic pressure was mildly elevated. The examination exhibited evidence of cardia dilation. Legal Analysis After a review of the evidence of record, the Board finds that service connection for hypertension (hypertensive vascular disease) based on exposure to herbicide agents is not warranted. As addressed above, the Veteran was diagnosed with hypertension in his late forties. Service treatment records do not indicate any complaints, treatment, or symptoms related to hypertension. The Veteran’s hypertension did not manifest in service. Thus, the Veteran cannot be found service connected for his hypertension was no in-service incurrence of the disease. Nor was hypertension diagnosed or found to exist until many years after service; service connection for hypertension on the basis that it is a “chronic” disease therefore is not warranted. The Veteran’s military personnel records show that from approximately June 1967 through July 1968, he served in the 2nd Infantry Division. This is a unit identified by the Department of Defense as operating in the Korean DMZ during the regulatory period. The Veteran also testified to his service in that unit as well as observing the effects of the herbicide agent in that area. Thus, the Veteran is presumed to have been exposed to herbicides, to include Agent Orange. See 38C.F.R. § 3.307(a)(6)(iii). Presumed service connection due to herbicide exposure under 38 C.F.R. § 3.307 requires that the Veteran be diagnosed with one of the enumerated diseases under 38 C.F.R. § 3.309 (e). Currently, hypertension is not listed as one of the enumerated diseases. The Board notes that the National Academy of Sciences has updates its reports to reflect that hypertension now has a documented level of associated with herbicide exposure. The NAS’s findings, however, do not establish an etiological connection between hypertension and herbicide exposure, but instead provides sufficient evidence of an association as to warrant further medical inquiry. To date, neither Congress nor VA’s Secretary has added hypertension to the list of diseases subject to service connection on an herbicides basis, and consequently there is no such presumption; whether hypertension is actually due to herbicide exposure must be determined under the facts of each individual appeal. The Board has considered the medical evidence and lay statements of record. The Board finds the February 2020 and April 2020 VA examinations probative. The examiners considered the Veteran’s medical history, in service and post-service, and also considered whether that service was etiologically related to the hypertension. The Board considered the February 2020 opinion most probative as the examiner also considered the Veteran’s subjective complaints regarding his hypertension and provided a rationale regarding the etiology thereto. The Board also considered Veteran’s statements and testimony regarding the onset of his hypertension. As explained above, hypertension is not a presumptively service connected disorder based on herbicide exposure. Looking at the facts in the Veteran’s particular case, the Veteran’s hypertension did not manifest until more than 20 years after his active service, and the medical opinions addressing etiology are all against the claim. While the Veteran himself proffers his own opinion on the matter, as a lay person, he may be competent to describe observable symptoms, but on the matter of etiology of a largely non-observable disease process such as hypertension that first manifests years after service (with no contention by the Veteran that he was tracking his blood pressure in service or in the years proximate to service) where the Veteran essentially is trying to relate a disease to an exposure many years in the past, the Board finds that the matter of etiology is not within the realm of lay expertise; it requires medical expertise. The Veteran’s own opinion therefore is not competent. Lastly, the Board has considered the Veteran’s contentions as proffered by his representative regarding the rationale of the February 2020 examination. The examiner opined that medical literature does not support the claim that Agent Orange causes hypertension. As explained, this is accurate. While the NAS has found a level of association between hypertension and herbicide exposure based on studies, it has not established that the development of hypertension is at least as likely as not related to herbicide exposure. There is no presumption of service connection for hypertension on an herbicides basis, and it remains a medical question to be resolved under the individual facts of each case. In this case, the medical opinions found no such etiological relationship. The Board finds the opinions were based on an accurate understanding of the medical literature, and that the opinions are not deficient. The Veteran and his representative have not adduced any favorable medical opinion evidence. Accordingly, the Board finds that the preponderance of the evidence is against service connection for hypertension. The claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hamilton, 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.