Citation Nr: 21021841 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 14-21 528 DATE: April 14, 2021 ORDER Entitlement to service connection for hypertension, to include as due to herbicide agent exposure and as secondary to service-connected diabetes mellitus type II, is denied. FINDING OF FACT The weight of the evidence reflects that hypertension did not manifest during service or within one year after separation from service, and that hypertension is not related to active service, including exposure to herbicide agents, or caused or aggravated by any service-connected disease or injury to include diabetes. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1116, 1116A, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from February 1967 to February 1970, including service in the Republic of Vietnam. This case initially came to the Board of Veterans’ Appeals (Board) from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which inter alia denied service connection for hypertension. In January 2014, a subsequent rating decision continued the denial of service connection for hypertension, including as secondary to his service-connected diabetes mellitus type II. In March 2014, the Veteran filed a Notice of Disagreement (NOD). The RO issued a Statement of the Case (SOC) in May 2014, continuing the denial of service connection and, in June 2014, the Veteran filed a timely substantive appeal (via VA Form 9). A supplemental statement of case (SSOC) was issued in July 2014 and December 2014, denying service connection for hypertension, to include as secondary to his service-connected disability of diabetes mellitus type II. In September 2015, the Veteran testified at a videoconference. A transcript has been associated with the record. In December 2015, the Veteran’s claim for service connection for hypertension including as a result of herbicide exposure, was remanded by the Board for additional development. The VA indicated that, while the record contained opinions as to whether the Veteran’s hypertension was caused by or aggravated by his service-connected diabetes, the record did not contain a medical opinion as to direct service connection addressing whether the Veteran’s hypertension had its onset during, or otherwise medically related to, active duty service. Therefore, a medical opinion, as to whether the Veteran’s hypertension was caused by or related to his time in service, was necessary. After a February 2016 VA examination, a Supplemental Statement of the Case (SSOC) was issued in June 2016, continuing the denial of service connection for hypertension, to include as secondary to diabetes and herbicide exposure. After two additional remands (2016, 2018), in March 2020, the appeal was again remanded by the Board for additional development, including an opinion on the etiology of the Veteran’s hypertension including consideration of the 2018 Veterans and Agent Orange Update 11. A June 2020 opinion was obtained which, for the reasons discussed below, is adequate to decide the claim. The agency of original jurisdiction therefore complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO issued a SSOC in July 2020 continuing the denial of service connection for hypertension. In January 2021, the Board sent a letter to the Veteran, which explained that the VLJ who presided over his hearing was no longer available to participate in the appeal and offered the Veteran a hearing before a different Veterans Law Judge; otherwise, the case would be reassigned. He was instructed that if he did not respond to this letter within 30 days, the Board would assume that he did not wish to have another hearing before a Veterans Law Judge currently employed by the Board. The Veteran did not respond to the January 2021 letter. Therefore, it is assumed that he does not want another hearing and the Board will consider his appeal based on the evidence of record. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease 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, like hypertension, 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). Further, a veteran, who, during active military service, served in the Republic of Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Service “in the Republic of Vietnam” includes service both on the landmass of Vietnam and the waters that are no more than 12 miles offshore of Vietnam. 38 U.S.C. § 1116A (a). If a veteran was exposed to Agent Orange during active military, naval, or air service, certain diseases, are presumptively service connected. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. § 3.309 (e). If entitlement to service connection is not established on any of the presumptive bases noted above, a veteran is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure. The Veteran asserts there is a medical nexus between his current hypertension and his exposure to herbicide agents during his service in Vietnam. There is no evidence of any complaints of, or treatment for, hypertension in the Veteran’s service treatment records (STRs). On the December 1969 separation examination, all systems including heart and vascular, were normal, and blood pressure was 128/74, which is normal. Gill v. Shinseki, 26 Vet. App. 386, 391 (2013). Pursuant to a March 2020 Board remand, a June 2020 VA opinion was obtained from a Physician’s Assistant (PA-C) as to the etiology of the Veteran’s hypertension. The PA-C reviewed the record, including the Veteran’s hearing testimony, and opined that his hypertension was less likely than not caused by his exposure to herbicide agents during service. The PA-C found that, while recent studies have shown an association with Veterans assigned to the Chemical Corps who had a high exposure to herbicides, there was no association with Veterans with other military occupational specialties who did not have long-term skin contact with the herbicide. Citing medical studies, she noted that 90 percent of people over 55 will develop hypertension, and thus the evidence of record did not establish a nexus between the Veteran’s hypertension and herbicide exposure. In his hearing testimony, the Veteran asserted that his current hypertension disability is caused by being exposed to Agent Orange while serving in Vietnam. Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. However, an opinion as to whether there is a link between the Veteran’s claimed hypertension and service, including due to exposure to herbicide agents, where there is no evidence of any hypertension for many years after service, is one requiring specialized knowledge and testing to understand the complex nature of the body systems. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007) (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). The Veteran has not indicated that he has such experience, thus, his opinion on the question of nexus is not competent evidence. The record also indicates the Veteran has not reported, and the evidence does not otherwise reflect, that he has experienced a continuity of hypertension symptomatology or high blood pressure in or during the years since service. Neither the clinical record, medical opinions or the lay statements of record establish a continuity of symptomatology with respect to the claimed hypertension. There is a probative medical opinion against the claim and no medical opinions or competent lay statements in support. As there is no other evidence of a relationship between the Veteran’s hypertension and his military service, including exposure to herbicide agents, the preponderance of the evidence is against a finding that the Veteran’s claimed hypertension had its onset in service or within the first post-service year, or that it is otherwise related to service to include to exposure to herbicide agents. Therefore, the benefit-of-the-doubt doctrine is not for application in this regard and service connection is not warranted on these bases. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Service connection for hypertension to include as secondary to service-connected diabetes mellitus, type II. In a February 2016 VA examination report, the examiner opined that it is less likely than not that the Veteran’s hypertension is proximately due to or the result of his service-connected diabetes mellitus type II. The examiner noted that the Veteran’s hypertension started prior to his diagnosis of his diabetes mellitus, that diabetic patients usually get hypertension if there is severe renal involvement, which does not exist in this case. She also noted that the current control of the diabetes indicated there was no evidence that blood sugars were causing aggravation of the hypertension beyond its natural progression. As it is based upon an examination of the Veteran, a review of relevant portions of his claims file, consideration of his reported history, and is accompanied by a specific rationale that is consistent with the evidence of record, the examiner’s opinion is adequate and entitled to some probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The opinion also addressed both causation and aggravation. El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (a medical opinion that does not specifically address aggravation is generally inadequate to decide a secondary service connection claim). The Veteran’s statements that his current hypertension disability is due to or, alternatively, aggravated by his service-connected diabetes disability, are not competent because this testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship, that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau, 492 F.3d at 1377, n.4. The record currently contains a probative medical opinion against the Veteran’s claim for secondary service connection and the Veteran’s lay statement in support of the claim. There is no other evidence supporting a relationship between the Veteran’s hypertension and his service-connected diabetes mellitus type II. As the preponderance of the evidence is against a finding that the Veteran’s claimed hypertension is caused or aggravated by diabetes mellitus type II, the benefit-of-the-doubt doctrine is not for application in this regard and service connection is not warranted on a secondary basis. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.K. Donaldson, Associate 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.