Citation Nr: 21022952 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-08 666 DATE: April 19, 2021 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for chronic kidney disease is denied. FINDINGS OF FACT 1. The Veteran’s hypertension did not manifest during service or within one year after separation from service, was not related to active service, including exposure to herbicide agents, and was not caused or aggravated by any service-connected disease or injury. 2. The Veteran’s chronic kidney disease did not manifest during service, was not related to active service, including exposure to herbicide agents, and was not caused or aggravated by any service-connected disease or injury. CONCLUSIONS OF LAW 1. 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. 2. The criteria for entitlement to service connection for chronic kidney disease are not met. 38 U.S.C. §§ 1110, 1116, 1116A, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1964 to September 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). Unfortunately, the Veteran died in February 2020. Pursuant to 38 U.S.C. § 5121A, the RO granted the appellant’s request to be substituted in the Veteran’s appeal and informed her of the decision by a letter dated July 2020. Accordingly, the appellant is substituted as the claimant for purposes of the service connection claims on appeal. In March 2020 and August 2020, the Board remanded the Veteran’s claims seeking entitlement to service connection for hypertension and chronic renal disease for additional evidentiary development. Specifically, the claims were remanded for an etiology opinion. Such an opinion was obtained in January 2021. The Board therefore determines that there has been substantial compliance with its previous remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). 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, 11131; 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). The Veteran’s exposure to herbicide agents has been conceded. 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). 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for hypertension is denied. The Veteran had alleged that his hypertension was etiologically related to his presumed in-service exposure to herbicide agents. In the August 2015 Notice of Disagreement, the Veteran also alleged that his hypertension was secondary to his service-connected ischemic heart disease and chronic renal disease. In an August 2020 appellate brief, the appellant's representative argued that the Veteran's hypertension was secondary to his service-connected prostate cancer. There is no evidence of any complaints of, or treatment for, hypertension in the Veteran’s service treatment records. Post-service medical records, including private treatment records dated in July 2011 and a March 2014 VA examination, reflect that the Veteran has been diagnosed with hypertension. Because the Veteran served aboard the U.S.S. Worden in the official waters of 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, 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. The Veteran did not allege, and the record does not suggest, 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. Pursuant to a March 2020 and August 2020 Board remands, a VA opinion was obtained in January 2021 to determine the etiology of the Veteran’s hypertension and determine, in part, whether it was more likely than not caused by his exposure to herbicide agents or otherwise due service or service-connected disabilities. The VA examiner reviewed the record and opined that the Veteran’s hypertension was less likely than not caused by his exposure to herbicide agents during service. In support of his conclusion, the examiner referenced the Veteran’s medical history, specifically noting that there was no evidence of hypertension while in service to include on separation and his hypertension was not diagnosed until 2011, over 35 years after his military service. The examiner further stated there was no recognized current, widely accepted, peer-reviewed literature that supported a finding that hypertension is caused by Agent Orange. The examiner referred to the National Academy of Science (NAS) article, Veterans and Agent Orange: Update 11 (2018) study which implied a relationship between Agent Orange exposure and hypertension. The examiner indicated that this report did not establish cause and noted that the current, widely accepted, peer-reviewed literature has not established Agent Orange as a cause of hypertension. The examiner noted that although a topic of continued research, any impact on the development of hypertension would be anticipated to have occurred more proximate to service and with a more labile presentation. Therefore, the examiner opined that it was less likely than not that the Veteran’s hypertension is due to or incurred in exposure to Agent Orange while in service. The VA examiner also found that it was less likely than not that the Veteran’s hypertension was caused or aggravated by his service-connected disabilities. The examiner reasoned that the Veteran’s relatively late onset of mild diabetes likely had no role and that coronary artery disease does not cause or aggravate hypertension as they are separate physiologically and anatomically. The examiner noted that coronary artery disease was due to atherosclerosis of the vessels supplying the heart muscle, whereas hypertension is due to increased peripheral resistance in the arterial system, and that it was therefore less likely than not that the coronary artery disease caused or aggravated the Veteran’s hypertension beyond its natural course. The examiner further reasoned that prostate cancer does not cause or aggravate hypertension in the absence of obstructive or metastatic disease as it has no physiologic or anatomic mechanism by which to do so without direct impact on kidneys and that it was therefore less likely than not that the Veteran’s hypertension has been caused or aggravated beyond the natural course due to prostate cancer. In summary, the examiner opined that the Veteran’s hypertension was less likely than not connected to service to include Agent Orange exposure and that it was less likely than not that ischemic heart disease, prostate cancer, and diabetes mellitus caused or aggravated the Veteran’s hypertension. In this case, the VA opinion addressed each theory of entitlement including secondary and explained the reasons for their conclusions 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 on these theories of entitlement. The Veteran’s written statements assert that his hypertension was 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, that it is otherwise related to service or due to exposure to herbicide agents or that it was caused or aggravated by a service connected disability. 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. 2. Entitlement to service connection for chronic kidney disease is denied. The Veteran had alleged that his chronic kidney disease was etiologically related to his presumed in-service exposure to herbicide agents. In the August 2015 Notice of Disagreement, the Veteran also alleged that his chronic kidney disease was secondary to his service-connected diabetes mellitus and hypertension. In an August 2020 appellate brief, the appellant's representative argued that the Veteran's chronic renal disease was secondary to his service-connected ischemic heart disease and his prostate cancer. There is no evidence of any complaints of, or treatment for, chronic kidney disease in the Veteran’s service treatment records. Post-service medical records, including private treatment records dated in July 2011 and a March 2014 VA examination, reflect that the Veteran has been diagnosed with chronic kidney disease. As noted above, he is presumed to have been exposed to herbicide agents, including Agent Orange. However, while the Veteran is presumed to have been exposed to an herbicide agent, chronic kidney disease 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. Pursuant to a March 2020 and August 2020 Board remands, a VA opinion was obtained in January 2021 to determine the etiology of the Veteran’s chronic kidney disease and determine, in part, whether it was more likely than not caused by his exposure to herbicide agents or otherwise due service or service-connected disabilities. The VA examiner reviewed the record and opined that the Veteran’s chronic kidney disease was less likely than not caused by his exposure to herbicide agents during service. In support of his conclusion, the examiner referenced the Veteran’s medical history, specifically noting that there was no evidence of chronic kidney disease while in service to include on separation and his chronic kidney disease was not diagnosed until 2011, over 35 years after his military service. The examiner noted that the Veteran’s chronic kidney disease has been attributed to his hypertension and that is was less likely than not that the Veteran’s chronic kidney disease is due to or incurred in service, including Agent Orange exposure. The examiner noted that a literature review has not established remote Agent Orange as a cause of chronic kidney disease and that, in general, any toxic exposure causing an impact on the kidney would be evident at or near the time of exposures and not greater than 30 years later. The examiner also found that it is less likely than not that the Veteran’s chronic kidney disease was caused or aggravated by his service-connected disabilities. The examiner reasoned that, from the available records, it appeared that the Veteran was not diagnosed with diabetes until in or around 2015 and that chronic kidney disease predated the diagnosis. The examiner reasoned that the Veteran’s chronic kidney disease due to hypertension was already moderate at the time of diagnosis in 2011 and that there was no evidence of cause or aggravation of chronic kidney disease beyond its natural course, due to any cause. The examiner noted that, in the face of continued hypertension, chronic kidney disease tended to progress as the physiologic changes already established continue to develop. The examiner further noted that the relatively late onset of mild diabetes likely had no role, that there was no apparent impact of the diabetes on the Veteran’s chronic kidney disease, that it was well-established before the diagnosis of diabetes and already moderate at that time and that there was no evidence to support aggravation due to diabetes. The examiner opined that prostate cancer does not cause or aggravate chronic kidney disease in the absence of obstructive or metastatic disease, that it had no physiologic or anatomic mechanism by which to do so without direct impact on kidneys and therefore it was less likely than not that the Veteran’s chronic kidney disease has been caused or aggravated beyond the natural course due to prostate cancer. In summary, the examiner opined that Veteran’s chronic kidney disease was due to hypertension and that it was less likely than not that ischemic heart disease, prostate cancer, and diabetes mellitus caused or aggravated the Veteran’s chronic kidney disease. In this case, the VA opinion addressed each theory of entitlement including secondary and explained the reasons for their conclusions based on an accurate characterization of the evidence of record. The opinion is therefore entitled to significant probative weight. See Nieves-Rodriguez v. Peake, supra. There is no contrary medical opinion on these theories of entitlement. The Veteran’s written statements assert that his chronic kidney disease was 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 chronic kidney disease and service, including due to exposure to herbicide agents, where there is no evidence of any chronic kidney disease 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, supra. 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 chronic kidney disease and service or a service connected disability, the preponderance of the evidence is against a finding that the Veteran’s claimed chronic kidney disease had its onset in service 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 chronic kidney disease 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.