Citation Nr: 21013974 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-11 194 DATE: March 11, 2021 ORDER Service connection for hypertension (HTN), to include as due to herbicide exposure and as secondary to service-connected diabetes mellitus, type II (DM) is denied. FINDING OF FACT HTN was not present in service or within one year of service separation, and is not etiologically related to service, including herbicide exposure, or a service-connected disability. CONCLUSION OF LAW HTN was not incurred or aggravated during active duty, its incurrence or aggravation during such service may not be presumed, and it is not proximately due to, the result of or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1965 to October 1967. The Veteran appeared for a hearing before the undersigned Veterans Law Judge in August 2018. The hearing transcript is associated with the claims file. In May 2019, the Board remanded the claim for further evidentiary development. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 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). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic disabilities, including HTN, to a degree of at least 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. § §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307 (a)(6) are met. See 38 C.F.R. § 3.309 (e). The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. In addition, a veteran who, during active military, naval, or air 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 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 serve to an herbicide agent, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service. See also 38 C.F.R. § 3.814(c)(2). 38 C.F.R. § 3.307 (a)(6)(iv). In order to benefit from the presumption of service connection for diseases associated with herbicide exposure, a veteran must have one of the diseases enumerated in § 3.309(e). When a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Service connection may also be granted for disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § § 5107 (2012); 38 C.F.R. § 3.102 (2019); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. Service connection for hypertension (HTN), to include as due to herbicide exposure and as secondary to service-connected diabetes mellitus, type II (DM) The Veteran contends that he has currently demonstrated hypertension, related to his active military service, or his service-connected DM. Because the Veteran served in Vietnam, his exposure to herbicides is presumed. 38 C.F.R. § 3.307 (a)(6)(iii). However, VA regulations do not provide for presumptive service connection, based on Agent Orange exposure, for hypertension. See 38 C.F.R. § 3.309 (e) (2019). Thus, a presumption of herbicide exposure based upon herbicide exposure in Vietnam is not warranted for hypertension. 38 C.F.R. §§ 3.307 (a)(6). The appellant could, nonetheless, establish service connection with evidence of direct incurrence. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). HTN was not diagnosed until many years after service, and there is no competent evidence to establish that it is due to any event or incident of the Veteran's period of active duty. Service treatment records do not contain a diagnosis of HTN or continuous high blood pressure readings during active duty or at discharge. Post-service treatment records show diagnosis and treatment for HTN since 2012 or 2013. See private treatment records from J.R., M.D. dated from 1985 to 2020, and VA treatment records from the VA Medical Center in Detroit dated from April 2011 to August 2013. The post-service treatment records do not indicate that the Veteran's HTN is related to his active military service, and there is no evidence of earlier treatment for high blood pressure or an earlier diagnosis of HTN of record. Furthermore, there is no probative evidence otherwise linking the current disability to service, including herbicide exposure, or a service-connected disability. In this regard, in accordance with the Board’s May 2019 remand, the Veteran was afforded VA examinations in September 2020 and January 2021 with medical opinions. The September 2020 VA examiner opined that the Veteran’s HTN was less likely than not incurred in or caused by military service. The rationale was that although medical records show continuity of care for HTN since 2016; reports do not show symptoms of HTN or elevated or decreased blood pressure in service. The January 2021 VA examiner opined that the diagnosed HTN was less likely than not incurred in or caused by service, including herbicide exposure. The rationale was that the Veteran is 76 years of age, with a significant past medical history of tobacco use, hyperlipidemia, and mild COPD. She noted further that HTN generally develops over many years, and it affects nearly everyone eventually. Finally, the examiner noted that the Veteran has essential HTN, likely related to long-term risk factors and age. Service connection is possible for disabilities first diagnosed after service, and the lack of evidence of a disorder in the service treatment records is not fatal to a claim for service connection. However, given the lack of evidence of HTN or elevated blood pressure during service or at discharge, the decades-long gap between service and the first notation of HTN, and the fact that HTN is not recognized as a presumptive disease based on herbicide exposure, the Board does not find the Veteran's accounts of HTN since service to be credible. As such, the Board finds the September 2020 and January 2021 VA examiners’ opinions are supported, and another examination is not necessary. The January 2021 VA examiner also opined that the Veteran’s HTN was less likely than not proximately due, the result of, or aggravated beyond the natural progression by his service-connected DM. The rationale again was the Veteran is 76 years of age, with a significant past medical history of tobacco use, hyperlipidemia, and mild COPD. She noted further that HTN generally develops over many years, and it affects nearly everyone eventually. She also concluded that the Veteran has essential HTN, likely related to long-term risk factors and age. In addition, the examiner noted that the Veteran’s HTN predated his DM diagnosis, and that his blood pressure continued to be treated with Lisinopril, and has been well-controlled, despite his DM diagnosis. The Veteran’s private physician, J. R., M.D., submitted a statement in support of the Veteran’s claim in June 2019. Dr. J.R., who had been treating the Veteran since June 2011, noted that he had reviewed the Veteran’s medical history and the circumstances of his military service, including his exposure to Agent Orange. He opined that, as the Veteran has no other known risk factors that may have precipitated his current HTN, it is more than likely that the Veteran’s condition is a direct result of his exposure to Agent Orange during military service. Dr. J.R. also noted that the medical literature shows that it is known that veterans with high exposure to Agent Orange experience a higher prevalence of several self-reported chronic diseases, including DM and HTN. The Board notes that the Veteran does have several risk factors for HTN, including advancing age, history of tobacco use, hyperlipidemia, and mild COPD, as noted by the VA examiners in September 2020 and January 2021. As such, Dr. J.R.’s opinion is based on an inaccurate factual premises, and therefore, lacks probative value. There is no other medical evidence of record, VA or private showing that the Veteran's currently diagnosed HTN is related to service, including herbicide exposure in service, or a service-connected disability. With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of HTN, the Board notes that this passage of time weighs significantly against a finding of direct service connection for HTN. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The presumption of service connection for chronic diseases diagnosed within one year following discharge from active duty is also not applicable to this case because the evidence demonstrates that HTN was initially shown more than one year after the Veteran's discharge from service. The Board acknowledges the Veteran's assertion that his HTN is due to herbicide exposure during service or his service-connected DM. However, while the Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability; in the present case, the Veteran is not competent to provide a nexus between his currently diagnosed HTN and his active service or a service-connected disability. Such an opinion would require medical expertise as it would require clinical testing of his blood pressure and interpretation of clinical findings as well as assessing the relevance of any noted symptomatology. Thus, the Board finds that the Veteran, as a layperson, is not qualified to render an opinion concerning the cause of his HTN. 38 C.F.R. § 3.159 (a)(1), (2) (2019). For the reasons and basis stated above, the Board finds that service connection for HTN on a direct, presumptive or secondary basis is not warranted. In reaching this decision, the Board has considered benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is the against the claim, that doctrine is not applicable. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Yankey, 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.