Citation Nr: 21014905 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 12-22 307 DATE: March 16, 2021 ORDER Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes, is denied. FINDING OF FACT The Veteran’s hypertension is not proximately due to or aggravated by the service-connected diabetes and it is not otherwise related to service. CONCLUSION OF LAW The preponderance of the evidence shows that the criteria for service connection for the Veteran’s hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.301, 3.302, 3.303, 3.307, 3.310.  REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1969 to November 1973. This case is before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO denied service connection for hypertension. In August 2010, VA received the Veteran’s Notice of Disagreement (NOD). In August 2012, the RO issued a Statement of the Case (SOC). Thereafter, VA received the Veteran’s timely VA Form 9 appeal to the Board. In April 2015, the Veteran testified at a video conference hearing at the RO before a Veterans Law Judge (VLJ) who is no longer employed by the Board. In June 2015, July 2016, and July 2019, the Board remanded the case for further development and adjudicative action. In July 2020, the Board sent a letter to the Veteran informing him that the VLJ before whom he had testified in April 2014 was no longer employed at the Board and advising him that he had a right to a new hearing before another VLJ that would decide his case. In a July 2020 correspondence, the Veteran declined a new hearing. 1. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes. The Veteran contends that his hypertension is proximately due to or aggravated by his service-connected diabetes or is otherwise related to service, and in particular, due to exposure to herbicides during his Vietnam service. The Veteran has a current diagnosis of hypertension. See February 2020 VA examination report. Therefore, the question for the Board is whether the Veteran’s hypertension is proximately due to or aggravated by his service-connected diabetes or is otherwise related to an in-service injury, event, or disease. The Board concludes that the Veteran’s hypertension is not proximately due to or aggravated by the service-connected diabetes or is otherwise related to service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.  The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  Service connection for a claimed disability may be established on a secondary basis if that disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a).  Establishing service connection as secondary to a service-connected disability requires a current disability that was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a).  Regarding aggravation, 38 C.F.R. § 3.310(b) provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected condition), in comparison to the current level of severity of the nonservice-connected disease or injury.   Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease, such as hypertension, is shown as such in service, subsequent manifestations of the same chronic disease are generally service-connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required.  Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013).  In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a).   At the outset, hypertension is not one of the disabilities listed under 38 C.F.R. § 3.309(e) as presumptively entitled to service connection based on exposure to herbicides. On remand from the July 2019 Board decision, the February 2020 VA examiner for the Veteran’s hypertension concluded that the Veteran’s hypertension predated service. The Veteran’s entrance examination provides a blood pressure of 156 (systolic) / 86 (diastolic); however, no diagnosis of hypertension or, alternatively, high blood pressure was noted during the examination. Therefore, he is presumed sound at entry with respect to any diagnosis of hypertension or high blood pressure. In order to rebut the presumption of soundness, there must be clear and unmistakable evidence that the hypertension/high blood pressure existed prior to service and clear and unmistakable evidence that the disability was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).  In general, lay statements by a veteran concerning a preexisting condition are not sufficient to rebut the presumption of soundness. See Gahman v. West, 13 Vet. App. 148, 150 (1999) (recorded history provided by a lay witness does not constitute competent medical evidence sufficient to overcome the presumption of soundness, even when such is recorded by medical examiners); Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a preexisting condition).  Although the presumption of soundness cannot be overcome simply based on the representations of the Veteran during the entrance examination or thereafter such statements are considered with all other material evidence in deciding as to inception. See 38 C.F.R. § 3.304; see also Miller v. West, 11 Vet. App. 345 (1998).  If VA is unable to rebut the presumption of soundness, then the claim becomes one for service connection based upon incurrence of disability in service.  In this case, the February 2020 examiner found that the reading of 156/86 “clearly indicate[s] that this veteran had a propensity to become hypersensitive as he aged.” Therefore, the examiner opined “that the subsequent development of hypertension, as [the] medical community currently defines, was already present at the time of [the Veteran’s] entrance exam.” However, as previously noted, no diagnosis of hypertension was noted at entrance. The presumption of soundness may only be rebutted by clear and unmistakable evidence showing that the Veteran’s hypertension predated service and was not aggravated during service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Here, the examiner’s suggestion that the Veteran’s blood pressure reading during the entrance examination may have provided an indication that the Veteran had the propensity to become hypertensive does not satisfy the evidentiary burden necessary to rebut the presumption of soundness. There is no further evidence of a preservice diagnosis of hypertension. Moreover, as discussed below, the June 2017 examiner noted that a diagnosis of hypertension requires several blood pressure readings on each day for consecutive days. This approach is consistent with criteria for diagnosis of hypertension as outlined in 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Given the above, the Veteran must be presumed sound at entrance into service as to any diagnosis of hypertension. During service, in addition to the 156/86 blood pressure reading at entrance, the Veteran’s service treatment records (STRs) show blood pressure readings of 120/60, from February 1970, and 140/90, from the Veteran’s November 1973 separation examination. See STRs dated February 12, 1970 and November 8, 1973. As discussed, the medical evidence shows that the Veteran was initially diagnosed with hypertension in 2004, over 30 years after separation from service. Thereafter, in 2008, the Veteran was diagnosed with diabetes. See Dr. D., primary care physician letter dated March 3, 2015. The Veteran’s diabetes has been service-connected based on presumed herbicide exposure during Vietnam service. See November 2015 rating decision. VA regulations provide that, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases include diabetes mellitus, type II, however, they do not presently include hypertension. See 38 C.F.R. § 3.309(e). Although hypertension is not presently amongst the delineated diseases associated with herbicide agent exposure, service connection for claimed residuals of exposure to herbicide agents may be established with evidence of actual causation. 38 C.F.R. § 3.309(e); Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). With regard to an associated between Agent Orange exposure and hypertension, in November 2018, the National Academy of Sciences (NAS) reclassified hypertension to the category of "sufficient evidence” of an association from its previous classification in the "limited or suggestive evidence" category. The sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and exposure to Agent Orange. See Veterans and Agent Orange: Update 2018. Notably, however, even though the NAS has found that there is "sufficient evidence” of an association between hypertension and exposure to herbicides, VA has not, to date, extended the presumption of service connection to hypertension; and the report does not provide evidence that this Veteran's hypertension was caused by exposure to herbicides. Evidence suggesting an association is not the same as evidence of causation. Notably, the December 2019 examiner’s report specifically identifies the updated NAS report as having been considered in conjunction with the examination and opinion. Turning to the medical opinions of record, the Veteran received VA opinions for his hypertension in June 2017 and February 2020. Regarding direct nexus to service, the June 2017 examiner opined that the Veteran’s hypertension was less likely than not caused by in-service herbicide exposure or was otherwise related to service. The examiner acknowledged the existence of medical literature suggesting a connection between herbicide exposure and hypertension. Nevertheless, she observed that the Veteran’s two elevated blood readings during service were not sufficient for a diagnosis of hypertension “as there are not consecutive elevated blood pressure readings on the same day over the course of several days.” Moreover, the examiner found no medical or lay evidence of either a diagnosis of hypertension or elevated blood pressure readings between 1973 and 2004. However, regarding nexus to the service-connected diabetes, the examiner indicated only that the Veteran’s hypertension diagnosis predated his diabetes diagnosis and that there was no evidence that the Veteran’s hypertension had been made worse by his diabetes. She provided no further supporting rationale. As the February 2020 examiner improperly found that the Veteran’s hypertension predated service, the examiner’s opinion on whether the Veteran’s preexisting hypertension was aggravated during service is not probative. Notwithstanding, the examiner also provided opinions on whether the Veteran’s hypertension is proximately due to or aggravated beyond its natural extent by the service-connected diabetes. Regarding secondary causation, he opined the Veteran’s hypertension was less likely than not proximately due to or the result of the Veteran’s service-connected diabetes. In support, the examiner noted that “diabetic nephropathy can develop in individuals in the 10-20 year time frame of following the development of diabetes and result in hypertension” but that the Veteran’s hypertension was not diagnosed prior to the diagnosis of diabetes. However, the examiner relied on his erroneous 1969 date of diagnosis of hypertension in the analysis. Regarding secondary aggravation, the examiner set a baseline for the Veteran’s hypertension based on number of medications taken and starting dosages. In 2004, he recorded that the Veteran was taking one medication at a low dose. By 2019, the Veteran was on three medications at high doses. Nevertheless, the examiner opined that the Veteran’s hypertension was less likely than not aggravated beyond its natural progression by the service-connected diabetes. In support, he found that the increase in medication variety and dosage over time was consistent with “the natural progression of patients with hypertension as they age.” Moreover, he noted that the Veteran required an escalation of therapy to treat his diabetes over his 11 years of treatment. Regarding the connection between hypertension and diabetes, the examiner stated that “the most common etiology or worsening blood pressure control in a diabetic is the development of diabetic nephropathy.” However, he recorded that the Veteran’s renal parameters, under which the existence of nephropathy is verified, were normal as of 2019. When evaluating the probative value of medical evidence, the Board considers the following factors: (1) whether the examiner is informed of the pertinent factual premises i.e. medical history of the case; (2) whether the examiner provides a fully articulable opinion, avoiding speculative language that does not provide the certainty needed for medical nexus evidence; and, (3) whether the opinion is supported by a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-4 (2008). Regarding the June 2017 opinion on direct nexus, the examiner provided a fully articulated opinion. Furthermore, the opinion is supported by a rationale supported by review of the Veteran’s full medical history, pertinent lay statements, and medical literature documenting the connection between hypertension and herbicide exposure. Accordingly, the June 2017 opinion is afforded significant probative value as to direct nexus. However, the examiner provided no rationale in support of her opinion that the Veteran’s hypertension was not caused or aggravated by the service-connected diabetes. Accordingly, the June 2017 opinion on secondary nexus is afforded no probative value. Regarding the February 2020 opinions on secondary causation and aggravation, the examiner provide fully articulated opinions supported by review of the entire claims file, including documents specified by the Board in the July 2019 remand order. Although the opinion on secondary causation relies on the inaccurate premise that the Veteran’s hypertension predated the diabetes diagnosis by 39 years, rather than 4 years, the rationale given remains sufficient to support the opinion. Specifically, the examiner indicated that the mechanism behind the development of hypertension in individuals with diabetes was the presence of diabetic nephropathy. In support on the opinion on secondary aggravation, he found that the record provided no evidence of diabetic nephropathy. Therefore, given that the incorrect date of diagnosis for hypertension relied upon by the examiner is immaterial to his analysis in the absence of evidence of diabetic nephropathy, the opinions are afforded significant probative value as to secondary nexus. Although the Veteran sincerely believes that his hypertension is related to his diabetes and/or exposure to herbicides during service, his opinion in this regard is not competent. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 454 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In addition, lay witnesses may, in some circumstances, competently opine on questions of diagnosis and etiology (such as the onset of an observable symptom such as varicose veins, for example). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, in this case, the question of the etiology of the Veteran’s hypertension falls outside the realm of common knowledge of a lay person, particularly in light of the lengthy time period between service and the onset of the current disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The disease involves a complex internal process as opposed to an external process or something capable of lay observation. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion on medical causation. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Therefore, his opinion lacks probative value. (Continued on the next page)   Accordingly, the most probative medical evidence shows that the Veteran’s hypertension is not proximately due to or aggravated by his service-connected diabetes or is otherwise related to service. Therefore, the preponderance of the evidence weighs against the claim and the benefit of the doubt doctrine is inapplicable. Accordingly, entitlement to service connection for hypertension is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Small, Attorney Advisor 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.