Citation Nr: 21025543 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-37 755 DATE: April 28, 2021 ORDER Entitlement to service connection for hypertension as due to herbicide exposure, and as due to service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran’s current hypertension was not incurred during his period of active service; any current hypertension is unrelated to service. 2. The Veteran’s current hypertension was not caused or aggravated by his service-connected diabetes mellitus or peripheral neuropathy. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from September 1968 to April 1970, to include service in the Republic of Vietnam. The Veteran’s claim was previously before the Board in November 2018 but was remanded so that the Agency of Original Jurisdiction (AOJ) could attempt to obtain additional service department records and private medical treatment records. Private medical records were associated with the claims file. Additional service treatment and personnel records were obtained. The Social Security Administration (SSA) informed the AOJ in June 2019 that there were no records for the Veteran. The Board also directed the AOJ to provide the Veteran with a VA examination for his hypertension to determine whether it was due to service or secondary to a service-connected disability. The Veteran underwent a VA examination in October 2019. The examiner stated that the Veteran’s diabetes did not cause his hypertension and explained why. A June 2020 opinion addressed whether diabetes or diabetic neuropathy could cause hypertension, and the examiner provided a rationale for the opinion. The examiner also addressed whether diabetes or diabetic neuropathy aggravated the Veteran’s hypertension, and provided a rationale for the opinion. The Board remanded the case again in September 2020 to obtain an addendum medical opinion regarding whether the Veteran’s hypertension as due to exposure to herbicide agents. In October 2020, an addendum opinion was obtained and it was accompanied by a rationale. Accordingly, the Board finds there has been substantial compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107 (a)(2). The Board notes that the Veteran’s appeal originally included a claim for entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. A November 2020 rating decision granted the Veteran’s claim for entitlement to TDIU, effective February 29, 2016. The February 29, 2016 effective date is the date of the Veteran’s claim for increased disability, and the earliest possible effective date that can be assigned. Accordingly, the November 2020 rating decision granting the Veteran’s claim for entitlement to TDIU is a complete and total grant of the benefits sought on appeal. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. Neither the Veteran nor his attorney have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for hypertension A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain designated herbicide agents during such service, absent affirmative evidence to the contrary. Service in the Republic of Vietnam includes service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Service connection based on exposure to the designated herbicide agents will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309. Hypertension is not among the conditions presumptively associated with herbicide exposure. The Veteran claims entitlement to service connection for hypertension as due to herbicide exposure in the Republic of Vietnam. He has confirmed service in the Republic of Vietnam, and therefore is presumed to have been exposed to herbicides during active service. The Veteran’s diagnosis of hypertension was confirmed at an October 2019 VA hypertension examination. The Veteran does not contend, and the record does not establish, that his hypertension was incurred during his period of active service. A June 2020 medical opinion noted that it was less likely than not that the Veteran’s hypertension was caused by his period of active service. The opinion reasoned that hypertension was not due to herbicide exposure because it is not on the list of diseases presumptively associated with herbicide agents. As noted in the September 2020 remand, this is not an adequate rationale for why his hypertension was not due to herbicide exposure. In addition, the medical report stated that the Veteran was not diagnosed with hypertension until 1999, well after his completion of active service. Therefore, service connection for hypertension as a chronic disease under 38 C.F.R. § 3.309(a) is not warranted. Additionally, while not dispositive of the issue, the Board may consider in its assessment of a service connection the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the Veteran was not diagnosed with hypertension until 1999, almost 3 decades after his completion of active service in April 1970. Further, an October 2020 addendum medical opinion found it was less likely than not that the Veteran’s hypertension was related to his active service. The opinion reasoned that the existing medical literature does not establish a relationship between exposure to herbicides and hypertension. The Board finds that the combined July 2020 and October 2020 medical opinions to be thorough and well-reasoned. The medical opinions are highly probative evidence against the Veteran’s claim for service connection on a direct basis. At present, the record does not contain a medical opinion or other evidence indicating that his current hypertension was incurred during or caused by the Veteran’s period of active service, to include exposure to herbicides in the Republic of Vietnam. Based on the probative evidence of record, the Board finds that entitlement to hypertension on a direct or presumptive basis is not warranted. See 38 C.F.R. §§ 3.303, 3.307, 3.309. The Veteran has also asserted that his current hypertension was caused or aggravated by his service-connected diabetes mellitus and peripheral neuropathy. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). An October 2019 opinion noted that hypertension was less likely than not caused by service connected diabetes mellitus because the two conditions were diagnosed together and there was no evidence of diabetic nephropathy. A June 2020 medical opinion found that it was less likely than not that the Veteran’s hypertension was caused by his diabetes mellitus or peripheral neuropathy. The opinion reasoned: Veteran diagnosed with Diabetes Mellitus at 26 years old, approximately in 1970. He was diagnosed with Hypertension in 1999… In 2004, [the Veteran] was noted to have a negative test for micro-albuminuria. Available renal labs have revealed normal renal function supporting his Hypertension is not secondary to his Diabetes Mellitus. Additionally, regarding the condition of Peripheral Neuropathy, [a]lthough Hypertension could contribute to peripheral neuropathy, the reverse would not hold true. Thus, the currently diagnosed Hypertension is less likely than not (less than 50 percent probability) proximately due to or the result of Veteran’s service-connected conditions of Diabetes Mellitus and Peripheral Neuropathy. The opinion further noted that it was less likely than not that the Veteran’s hypertension has been aggravated beyond its natural progression by his service-connected diabetes mellitus or peripheral neuropathy. The opinion reasoned: Veteran, in 2004, was on Lisinopril, which was switched to Losartan, which most recently is noted to be at the starting dosage for Hypertension of 50mg (equivalent medications) with well controlled blood pressure. There is no further additional medications or medication dosage changes suggesting [the Veteran’s hypertension is] not worsening or aggravated by another disease since initial diagnosis. The July 2020 medical opinion is thorough and well-reasoned. The Board finds that the July 2020 medical opinion is highly probative evidence against the Veteran’s claim for secondary service connection. At present, the record does not contain a medical opinion or other evidence indicating that the Veteran’s current hypertension was caused or aggravated by his service-connected diabetes mellitus or peripheral neuropathy. Based on the probative evidence of record, the Board finds that entitlement to hypertension on a secondary basis is not warranted. See 38 C.F.R. § 3.310. (Continued on the next page)   The Board concludes that the preponderance of the evidence is against the claim for service connection for the Veteran’s hypertension. The benefit of the doubt rule therefore does not apply, and service connection for this disability is not warranted. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Riordan, 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.