Citation Nr: 21021937 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 20-23 830 DATE: April 14, 2021 ORDER Service connection for hypertension, to include as due to in-service herbicide exposure, is denied. FINDING OF FACT The Veteran’s hypertension did not manifest during service or within one year after separation from service and is not related to active service, including exposure to herbicide agents. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1116, 1116A, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from March 1963 to December 1966. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an October 2017 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The claim, as well as a claim for a total disability rating based on individual unemployability (TDIU), was remanded by the Board for further development in October 2020. Specifically, the Board remanded the claim to obtain an etiology opinion. Such an etiology opinion was obtained in November 2020. The Board therefore determines that there has been substantial compliance with its previous remand. Stegall v. West, 11 Vet. App. 268 (1998). In a January 2021 rating decision, the agency of original jurisdiction (AOJ) granted a TDIU, effective June 26, 2017, the date of claim. This is a total grant of benefits on appeal. In February 2021, the Veteran’s former attorney withdrew from representing the Veteran. The Veteran was informed of this withdraw in a March 2021 letter and informed that he may appoint a new Veterans Service Organization or other representative. The Veteran did not respond to this letter and did not appoint a new representative. Therefore, the Board will consider him to be pro se. 1. Service connection for hypertension is denied. 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, 1131; 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). 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). 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 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). Hypertension is a chronic disease. 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran generally contends that he suffers from hypertension as a result of service, to include his exposure to herbicide agents. Post-service medical records, including private treatment records dated in October 2007 and a July 2017 VA examination, reflect that the Veteran has been diagnosed with hypertension. Because the Veteran served in the Republic of Vietnam during the Vietnam War, he is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116A; 38 C.F.R. § 3.307(a)(6)(iii). Thus, the presence of a current disability and in-service exposure to herbicide agents have been demonstrated. Service connection may be granted on a presumptive basis for the diseases listed in 38 U.S.C. § 1116(a)(2) and 38 C.F.R. § 3.309(e). However, while the Veteran is presumed to have been exposed to an herbicide agent, hypertension is not among the diseases listed for which presumptive service connection is available based on in-service herbicide agent exposure. However, entitlement may be shown on a direct basis. The Board has first considered whether service connection is warranted on a presumptive basis. However, the clinical evidence of record fails to show that the Veteran manifested hypertension to a degree of 10 percent within the one year following his discharge from service in December 1966. In this case, the clinical evidence does not reveal an assessment of hypertension within one year of service discharge. The July 2017 VA examination report indicates that hypertension was diagnosed in 2007 and an October 2007 private treatment note indicates there was a recent onset of hypertension. In addition, the Veteran has not alleged a continuity of symptomology. As such, presumptive service connection is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. There is no evidence of any complaints of, or treatment for, hypertension in the Veteran’s service treatment records. Pursuant to an October 2020 Board remand, a VA opinion was obtained in November 2020 to determine the etiology of the Veteran’s hypertension and to determine, in part, whether it was more likely than not caused by his exposure to herbicide agents or otherwise due service. The VA examiner reviewed the record and opined that his hypertension was less likely than not caused by the Veteran’s exposure to herbicide agents during service. In support of his conclusion, the examiner indicated that review of the medical literature shows that the known risk factors for hypertension include age, race, obesity, physical inactivity, family history, tobacco use, diet and alcohol use. The examiner referred to the National Academy of Science (NAS) article, Veterans and Agent Orange: Update 11 (2018) study which found limited or suggestive evidence of an association between exposure to herbicides and hypertension, however, the examiner noted that the study is limited in that it did not include risk factors for hypertension. The examiner further reasoned that a review of the Veteran’s claims file shows that personal known risk factors for the development of hypertension which include tobacco use and supports obesity prior to 2007 were present and that the Veteran’s actual weight was not documented on the October 2007 note but documented weight the following month November 2007 was 217 pounds. Therefore, the examiner found it is less likely than not that the hypertension was incurred in or caused by military service to include herbicide exposure during service. This VA opinion addressed the Veteran’s theory of entitlement and explained the reasons for the conclusion based on an accurate characterization of the evidence of record. The opinion is therefore entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no contrary medical opinion. The Veteran asserts that his current hypertension 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. 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 service, 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 or due to exposure to herbicide agents. Therefore, the benefit-of-the-doubt doctrine is not for application, and service connection for hypertension is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. M. Donahue Boushehri, 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.