Citation Nr: 21021029 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 14-31 324A DATE: April 9, 2021 ORDER Entitlement to service connection for hypertension is denied. Entitlement to an increased rating greater than 10 percent for ischemic heart disease is denied. REMANDED Entitlement to service connection for a respiratory disability, to include COPD, hemophilus influenza pneumonia, and upper respiratory infection (URI), is remanded. FINDINGS OF FACT 1. Hypertension was not manifest in service or within one year of separation from service and was not otherwise caused by the Veteran’s active service, to include as due to herbicide exposure. 2. The Veteran’s ischemic heart disease is manifested by the requirement for continuous medication. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria for entitlement to an increased rating greater than 10 percent for ischemic heart disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.321, 4.7, 4.104, Diagnostic Code (DC) 7005 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Army from March 1968 to January 1971, with service in the Republic of Vietnam. The Board remanded the above issues in April 2018. In addition to the above issues, the remand included the issue of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). Since that time, a February 2020 rating decision granted entitlement to service connection for PTSD and depressive disorder and assigned a rating and effective date. This constituted a complete grant of the acquired psychiatric disorder issue which is no longer in appellate status and will not be discussed further. As to the respiratory disability claim, the Board notes that the prior April 2018 remand mistakenly considered the claim on a de novo basis, as there was a prior final denial of the claim in a November 2011 rating decision. The Board does not find that the determination prejudiced the Veteran, as new and material evidence has been provided since the November 2011 determination, including a May 2018 private medical opinion discussed in greater detail below. 1. Entitlement to service connection for hypertension Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110. 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). Alternatively, a “veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 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). Such diseases, however, specifically do not include hypertension. 38 C.F.R. § 3.309(e). Notwithstanding the foregoing presumptive provisions, that the Federal Circuit has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). To establish a right to compensation for a present disability, a Veteran must show: “(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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310. Blood pressure measurements are expressed as systolic divided by diastolic pressure in millimeters of mercury (mmHg). The Veteran’s July 1967 Report of Medical Examination included a blood pressure reading of 136/86. A January 1971 Report of Medical Examination prior to separation from service included a blood pressure reading of 118/72. In a contemporaneous Report of Medical History the Veteran denied a history of high or low blood pressure. Later in January 1971, the Veteran indicated that there had been no change in his condition since his last separation examination. The Veteran was afforded a VA examination in February 2013. The examiner noted a diagnosis of hypertension in 2006 or 2007 during an annual physical. The examiner concluded that it was less likely than not that the Veteran’s hypertension was proximately due to or the result of a service-connected disability. The rationale indicated that hypertension could lead to a heart condition, but that heart conditions did not cause hypertension. The Veteran’s ischemic heart disease did not cause, was not related to, and did not aggravate the Veteran’s hypertension. As to the Veteran’s PTSD, the examiner indicated that although mental disease and stress could temporarily elevate blood pressure during an acute phase of the disease, the examiner was unaware of any medical literature that substantiated a claim that PTSD elevated blood pressure permanently. As such, the Veteran’s PTSD did not cause, was not related to, and did not aggravate the Veteran’s hypertension. In support of his claim, the Veteran submitted the abstract from a study titled, “Health status of Army Chemical Corps Vietnam veterans who sprayed defoliant in Vietnam.” The abstract indicated that the ratios for disabilities included hypertension and chronic respiratory disease were “elevated, but not significantly (P>0.05) for those who served in Vietnam. However, they were significantly elevated among those Vietnam veterans who sprayed herbicides…” During his October 2017 Board hearing, the Veteran indicated that his hypertension was caused or aggravated by his PTSD and/or heart disease. The Veteran was afforded a VA examination in October 2019. The examiner noted a diagnosis of hypertension with onset date in 2008 when the Veteran went to an Agent Orange physical and discovered to have hypertension. Following examination, the examiner concluded that it was at least as likely as not that the Veteran’s hypertension was incurred in or caused by service. The rationale indicated that the Veteran’s hypertension had its onset in service, as demonstrated in the service treatment records. Thereafter, there was evidence of current, chronic, and continuous treatment and care. The examiner also indicated that the Veteran had hypertension when exiting service that was not pursued for many years. “Since hypertension started while in service, at least as likely as not incurred while in service. [A] 2006 conclusion of the National Academy of Sciences (NAS) that found limited or suggestive evidence of an association between herbicide exposure and hypertension (notwithstanding that VA has not added hypertension to the list of conditions under 38 C.F.R. [§] 3.309 for which presumptive service connection due to Agent Orange exposure.)” In a March 2020 addendum, the reviewing medical profession concluded that it was less likely than not that the Veteran’s hypertension was incurred in or caused by service. The rationale noted that the Veteran was not diagnosed with hypertension until over 30 years after separation from service. The Veteran had confirmed herbicide exposure in service. In addition, “Recent studies have found an association between high exposure to herbicides and hypertension.” That said, the examiner noted that the study was limited in that it did not include risk factors for hypertension, such as age, race, obesity, physical inactivity, hypercholesteremia, family history, tobacco use, diet, and alcohol use. Hypertension also could develop as secondary to factors such as obstructive sleep apnea, kidney disease, adrenal gland tumors, and thyroid problems. Also blood pressure could be affected by decongestants and some prescription and illegal drugs, including cocaine and amphetamines. The Veteran had known risk factors for the development of hypertension, including being overweight, a diagnosis of COPD, and a history of smoking tobacco for over 40 years. Another medical opinion indicated that the Veteran’s service treatment records were negative for a diagnosis of hypertension or elevated blood pressure readings during active service. A hypertension diagnosis was not made until 2008, more than 30 years after service. As discussed above, the Veteran has a current hypertension diagnosis. The relevant question, therefore, is whether the hypertension was incurred in service, was aggravated by service, or was caused or aggravated by a service-connected disability. As noted, the Veteran’s service treatment records include no diagnosis of hypertension or symptoms related to hypertension. The Veteran does not claim in-service onset. Similarly, there is not a continuity of symptoms from service. As to the Veteran’s contentions that his hypertension was caused by in-service herbicide exposure, he is competent to report sensory or observed symptoms, but given that he did not have a continuity of symptoms from service and it was not until multiple decades after service that he was diagnosed with hypertension the Board finds that the Veteran is not competent to attribute his hypertension to in-service herbicide exposure. Such a conclusion is medically complex in nature and beyond the capabilities of a lay person to diagnose. Cf. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). As such, the Board affords the Veteran’s contentions no probative weight. The Board acknowledges that the October 2019 VA examiner concluded that it was at least as likely as not that the Veteran’s hypertension was due to his active service. The rationale for that conclusion, however, relied on in-service onset of the hypertension. As discussed above, there is no evidence of in-service onset of hypertension. Indeed, there is extensive contemporaneous evidence to suggest otherwise. As such, the examiner’s conclusion was based on an inaccurate factual premise and is of no probative value. The March 2020 addendum opinion, by contrast, accurately noted that the Veteran did not have any in-service hypertension or symptoms thereof. The opinion also noted that while there was a study suggestive of an association between hypertension and herbicide exposure, but the medical professional observed that the medical study failed to take into account other risk factors for hypertension, such as age, race, obesity, physical inactivity, hypercholesteremia, family history, tobacco use, diet, and alcohol use. The Veteran had several of these risk factors, specifically being overweight, a diagnosis of COPD, and a history of smoking tobacco for over 40 years. The medical professional concluded that these risk factors were the most likely causes of the Veteran’s hypertension and not his in-service herbicide exposure. As the medical professional relied on an accurate representation of the facts in this case and provided a clear rationale for the conclusion reached, the Board finds this opinion the most probative medical evidence of record. Finally, the Board has considered the online abstract submitted by the Veteran discussing an association between herbicide exposure and hypertension. That study, however, noted a “not significant” elevation in the risk for hypertension in those exposed to herbicides in service except for those who were actually spraying the herbicides. The Veteran served as an Army helicopter mechanic, and there is no evidence to suggest that the Veteran actively sprayed herbicides during his service in Vietnam. As such, affords the article and related study limited probative weight that is substantially outweighed by the March 2020 medical opinion. As to the Veteran’s contentions that his hypertension was caused or aggravated by his service-connected heart and/or PTSD disabilities, the Board notes that there is insufficient medical evidence to support such an assertion. Indeed, the February 2013 examiner specifically considered these contentions and concluded that it was less likely than not that the hypertension was caused or aggravated by either disability. The rationale noted that hypertension could lead to a heart condition, but that a heart disability could not cause or aggravate hypertension. Similarly, while mental disease and stress could have a temporary effect on hypertension, the examiner was unaware of any medical literature finding that the acquired psychiatric disorder could have a permanent effect on blood pressure. The Board finds this opinion the most probative evidence of record as to any association between the Veteran’s service-connected heart and PTSD disabilities and his hypertension. The Board recognizes that the March 2020 opinion indicated that COPD could have effect hypertension, but there is no medical or lay evidence in this case to suggest such an association. As such, the Board does not find the hypertension claim inextricably intertwined with the remanded respiratory disability claim. As to the Veteran’s general contentions that his hypertension was caused or aggravated by his service-connected heart and PTSD disabilities, as above, he is not competent to make such a conclusion given its medical complexity involving the interrelationship of various body systems. In summary, the Veteran’s service treatment records show no symptoms or issues related to hypertension. There is no evidence of problems related to hypertension for many years after separation from service. The most probative medical evidence is against a finding that the hypertension was due to service. Based on the foregoing, service connection on a direct basis is not warranted. Moreover, exposure to herbicides is not presumed and service connection on a presumptive basis is not warranted. No medical professional has linked the Veteran’s hypertension to his service-connected heart and/or PTSD disabilities (and indeed there is medical evidence to the contrary) and the Veteran’s statements in that regard are of significantly less probative weight than the opinion of the medical professional. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claims must be denied. See 38 U.S.C. § 5107(b); see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). 2. Entitlement to an increased rating greater than 10 percent for ischemic heart disease Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C. § 1155. Requests for increased disability ratings require consideration of the medical evidence of record compared to the criteria in the VA Schedule for Rating Disabilities. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to “staged” ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s ischemic heart disease is rated at 10 percent pursuant to 38 C.F.R. § 4.104, DC 7005. The Veteran believes that the current rating does not accurately reflect his condition. DC 7005 provides ratings for arteriosclerotic heart disease (coronary artery disease), and requires documented coronary artery disease. Arteriosclerotic heart disease (coronary artery disease) resulting in workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; when continuous medication is required, is rated 10 percent disabling. Arteriosclerotic heart disease resulting in workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray, is rated 30 percent disabling. Arteriosclerotic heart disease resulting in more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent, is rated 60 percent disabling. Arteriosclerotic heart disease resulting in chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent, is rated 100 percent disabling. 38 C.F.R. § 4.104, DC 7005. A Note to DC 7005 provides that, if non-service-connected arteriosclerotic heart disease is superimposed on service-connected valvular or other non-arteriosclerotic heart disease, the adjudicator is to request a medical opinion as to which condition is causing the current signs and symptoms. 38 C.F.R. § 4.104. For rating diseases of the heart, one MET (metabolic equivalent) is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for rating, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note 2. In July 2011, the Veteran’s left ventricular ejection fraction was 62 percent. The Veteran was afforded a VA examination in July 2012. The Veteran had ischemic heart disease, but no history of myocardial infarction, congestive heart failure, cardiac arrhythmia, heart valve condition, infectious cardiac condition, pericardial adhesions, cardiac hypertrophy, and cardiac dilation. The Veteran’s estimated METs level was 1 to 3, which was consistent with activities such as eating, dressing, taking a shower, and slow walking (2 miles per hour) for 1 to 2 blocks. The examiner indicated, however, “This veteran’s METs level is related to his severe emphysema. The Veteran’s normal ejection fraction of 62% is indicative of his cardiac condition. He has stress testing – reversible perfusion defect, indicative of ischemic heart disease / CAD. H is on anti-hypertensive medications. No other cardiac medication. He has no symptoms of coronary artery disease.” A February 2014 echo showed an ejection fraction between 60 and 65 percent. In October 2015, the Veteran reported that he rode a stationary bicycle and walked in a store for a couple of hours. His left ventricular ejection fraction was estimated at 60 to 65 percent. In December 2015, the Veteran’s left ventricular ejection fraction was estimated at 45 to 50 percent. In October 2016, the Veteran’s left ventricular ejection fraction was estimated at 60 to 65 percent. During his October 2017 Board hearing, the Veteran testified that due to his heart disability he was unable to do dishes without taking a break. He also experienced rapid beating of the heart at night that sometimes required a nitroglycerin pill. The Veteran also was unable to mow the grass or shovel. Even picking up items up to 10 pounds and carrying it for 10 feet required that the Veteran sit down and take oxygen. The Veteran was afforded a VA examination in October 2019. The examiner diagnosed ischemic heart disease. Current symptoms included chest pain and shortness of breath with exertion. The Veteran had no history of myocardial infarction, congestive heart failure, cardiac arrhythmia, heart valve condition, infectious cardiac condition, pericardial adhesions, cardiac hypertrophy, and cardiac dilation. The most recent diagnostic testing results were normal, including a June 2014 echocardiogram that showed left ventricular ejection fraction of 65 percent. X-rays showed signs of chronic COPD, but no acute disease. The examiner indicated that exercise stress testing was not required as part of the Veteran’s current treatment plan and the test was not without significant risk. Interview-based METs testing indicated a METs of 1 to 3 due to shortness of breath. In a March 2020 addendum, a medical professional concluded that the Veteran’s left ventricular ejection fraction of 60 percent best reflected his current cardiac function. The interview based METs score was subjective and included symptoms of co-morbid conditions. Based on the evidence of record, the Board concludes that a rating greater than 10 percent for ischemic heart disease is not warranted. As discussed, the medical evidence shows that the Veteran was on continuous medication for his diagnosed heart disability, but that the diagnostic testing results showed no active acute disease. Testing indicates METs of 1 to 3, but this has been attributed exclusively to his COPD. Both examiners concluded that the Veteran’s ejection fraction of 60 percent more accurately reflected the severity of the Veteran’s heart disability. The Board acknowledges the December 2015 finding of an estimated ejection fraction of 45 to 50 percent, but given that prior and subsequent ejection fraction findings have been in the 60 percent range, the Board finds that the lower ejection fraction was a temporary aggravation and not representative of the Veteran’s chronic ischemic heart disease. Moreover, there is no evidence of cardiac hypertrophy or dilation or chronic congestive heart failure. The Veteran is asymptomatic with respect to his heart disability. The Board has considered the other DCs related to the heart and concludes that no rating greater than 10 percent otherwise is warranted under DCs 7000 through 7123. Therefore, in light of the evidence of record outlined above, the Board finds that a rating greater than 10 percent for ischemic heart disease is not warranted for any period on appeal. See 38 C.F.R. § 4.104, DC 7005. REASONS FOR REMAND 1. Entitlement to service connection for a respiratory disability The Veteran contends that he has a respiratory disability was incurred in service, is due to in-service herbicide exposure, or was caused or aggravated by a service-connected heart disability. The Veteran’s service treatment records include multiple treatments for upper respiratory infections, including in April 1968, September 1969, and December 1969. June 1969 and January 1971 x-rays of the chest were negative / normal. In his January 1971 Report of Medical History prior to separation from service, the Veteran denied a history of asthma, shortness of breath, pain or pressure in the chest, or chronic cough. In his June 2011 claim, the Veteran contended that he had a lung disability that was related to herbicide exposure in Vietnam. In an October 2011 statement, the Veteran indicated that his lung problems began during basic training with ongoing problems since that time. During his October 2017 Board hearing, the Veteran contended that his respiratory problems began during basic training with an upper respiratory infection, for which he was hospitalized. Subsequently, he was treated multiple times during service for upper respiratory infections. The Veteran indicated that he had been told by a VA physician that x-rays showed lung problems due to a “constant lung infection” and that the lungs were so deteriorated and scarred that he recommended a lung transplant. He had asked a civilian doctor to write a letter to VA linking the respiratory problems to service, “But he said, ‘If I write a nexus letter, and you ever smoked a cigarette in your life, the VA will throw that opinion right in the basket.’” May 2018 letter from a private treating pulmonologist indicated that the Veteran’s “recent angioplasty and past history of cardiovascular disease support the unfortunate associated advanced heart disease which complicates his advance[d] pulmonary problems.” A specific rationale for that conclusion, however, was not provided. In April 2020, a CT scan showed COPD with severe emphysematous changes of the lungs. A June 2020 PET scan included an impression of a large left hilar mass with abnormal activity consistent with malignancy. Additional respiratory diseases include obstructive chronic bronchitis with exacerbation, centrilobular emphysema, interstitial lung disease (ILD), and chronic respiratory failure with hypoxia. In February 2021, the RO granted service connection for non-small cell lung cancer. In light of the May 2018 private pulmonologist’s letter received after the last Board remand in April 2018, the Board concludes that another remand is required for a VA examination and medical opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his claimed respiratory disability, to include COPD with severe emphysematous changes of the lungs, obstructive chronic bronchitis with exacerbation, centrilobular emphysema, interstitial lung disease (ILD), and chronic respiratory failure with hypoxia. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is any diagnosed respiratory disability at least as likely as not caused by service? Is any diagnosed respiratory disability at least as likely as not caused by in-service exposure to herbicide agents? Is any diagnosed respiratory disability at least as likely as not proximately due to a service-connected disability, specifically to include the Veteran’s ischemic heart disease? Is any diagnosed respiratory disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by a service-connected disability, specifically to include the Veteran’s ischemic heart disease? Provide a rationale to support the opinion(s). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Houbeck, 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.