Citation Nr: 21023541 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-30 403 DATE: April 20, 2021 ORDER Entitlement to service connection for hypertension to include as due to herbicide agent exposure is denied. FINDING OF FACT The Veteran’s hypertension was not shown in service, or for many years thereafter, and is not otherwise etiologically related to active duty service, to include exposure to herbicide agents. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension to include as due to herbicide agent exposure have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served from February 1970 to October 1971 with service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in September 2019 for additional development, including a VA opinion. As there has been substantial compliance with prior remand directives, this matter is properly before the Board for adjudication. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). Furthermore, service connection is warranted for a veteran who has been exposed to a toxic herbicide agent during active military service (subject to the requirements of 38 C.F.R. § 3.307 (a)) for diseases such as chloracne or other acneform diseases consistent with ischemic heart disease, Type 2 diabetes, Hodgkin’s disease, non-Hodgkin’s lymphoma, porphyria cutanea tarda, multiple myeloma, prostate cancer, soft-tissue sarcomas, early-onset peripheral neuropathy, Parkinson’s disease, chloracne and respiratory cancers, and B-cell leukemias. 38 C.F.R. § 3.309(e). A veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed during such service to certain toxic herbicide agents, with the most common being “Agent Orange,” unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Therefore, if a Veteran served in-country in Vietnam, they are entitled to a presumption of herbicide agent exposure, and need not prove actual exposure to herbicide agents. In this case, the Veteran served in Vietnam during the period described in the regulation and is therefore presumed to have been exposed to herbicide agents. Entitlement to service connection for hypertension to include as due to herbicide agent exposure The Veteran seeks service connection for hypertension, which he alleges was due to herbicide agent exposure, specifically Agent Orange, during active duty service. After reviewing all the evidence currently of record, the Board determines that service connection for hypertension is not warranted. As an initial matter, the Board finds that the Veteran is not entitled to service connection for hypertension on a presumptive basis due to herbicide agent exposure per 38 C.F.R. §§ 3.307 (a)(6)(ii) and 3.309(e). Although the Veteran is presumed to have been exposed to herbicide agents, hypertension is not listed as a condition under 38 C.F.R. § 3.309(e) as a disease associated with exposure to certain herbicide agents. Next, although the Veteran is not entitled to presumptive service connection for hypertension due to herbicide agent exposure or a chronic condition per 38 C.F.R. §§ 3.307 and 3.309, he is not precluded from demonstrating that his hypertension, was proximately due to, the result of, or aggravated by his herbicide agent exposure or other in-service illness, event, or injury. See Combee v. Brown, 43 F.3d 1039, 1041-42 (Fed. Cir. 1994). However, the competent evidence fails to establish a relationship between active duty and the Veteran’s hypertension. First, the Board notes the Veteran asserts that he was diagnosed with hypertension in 1971. However, the Veteran’s separation examination conducted in September 1971 is silent for symptoms or a diagnosis of hypertension. In fact, the Veteran’s blood pressure reading was 118/78 at that time, which is not within the range considered by VA to be hypertensive. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). With regard to whether the Veteran’s hypertension was first diagnosed during or shortly after the Veteran’s active service, the Board acknowledges that lay evidence may be competent and sufficient to establish a diagnosis where the layperson is reporting a contemporaneous medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, the Board does not find the Veteran credible in that regard because his reports as to the onset and initial diagnosis of his hypertension are vague and are not supported by medical evidence of any kind. The Veteran is not competent to diagnosis himself with hypertension, see Kahana v. Shinseki, 24 Vet. App. 428 (2011), and accepting his vague and unsupported statements as evidence that he was diagnosed with hypertension within a year of separation from his active service would be equivalent to doing so. As the evidence of record does not contain a diagnosis for hypertension during or within one year of active service, the Board finds that the Veteran is not entitled service connection for hypertension on a presumptive basis for chronic conditions per 38 C.F.R. §§ 3.307(a)(3) and 3.309(a). After a review of the record, the Board finds that the record does not reflect a diagnosis of hypertension until many years after separating from service. Therefore, continuity of symptoms since service is not shown. Next, service connection may be granted if the evidence otherwise reflects that the Veteran’s hypertension is related to service. However, after a review of all available evidence, service connection is not warranted on this basis. Specifically, the Veteran underwent a VA examination in February 2020. The examiner opined that the Veteran’s hypertension is less likely as not incurred in or caused by the exposure to herbicides during service. In support of this opinion, the examiner stated that she reviewed the November 2018 NAS study and, while there may be a link between exposure and hypertension, it is noted that Veteran has multiple lifestyle risk factors more associated with hypertension. The examiner stated that the Veteran has a history of smoking, excessive alcohol intake, and leading a sedentary lifestyle working as a truck driver which are important risk factors for the development of hypertension. Further, the examiner stated that the Veteran was noted to be normotensive while in service and at time of discharge from the service. Because the examiner was able to review the entire record in forming their opinion, the Board finds this opinion highly probative. The Board affords probative weight to the examiner’s conclusion because she provided an appropriate rationale. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The examiner explained that although there may be a link between herbicide agents and hypertension, the Veteran has other lifestyle factors that are important risk factors in developing hypertension. In arriving at these conclusions, the Board has considered the statements made by the Veteran relating his hypertension to active duty service. In this case, however, he is not competent to provide testimony regarding the etiology of hypertension because this disorder is not diagnosed by features readily identifiable by a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). He is a lay person without medical training and expertise, and thus, is not able to make an etiological conclusion regarding the cause of his hypertension, especially given that the evidence fails to demonstrate the onset of hypertension in service, or any other in-service incident, illness, or injury to which such a condition may be presently linked. The Board concludes that the weight of the evidence is against the claim for service connection and there is no other doubt to be otherwise resolved. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The appeal is denied. T. J. ANTHONY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Vample, Erica 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.