Citation Nr: 21026712 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 13-33 891A DATE: May 3, 2021 ORDER Entitlement to service connection for a respiratory disability is denied. Entitlement to service connection for hypertension is denied. FINDINGS OF FACT 1. The Veteran does not have a diagnosis or disability of asthma during or in close proximity to the appellate time period and his sinusitis was not incurred in or otherwise caused by service. 2. The Veteran's hypertension was not incurred in service, manifest within one year of service, was not otherwise caused by service (to include in-service exposure to herbicide agents), and was not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a respiratory disability, to include bronchial asthma and sinusitis, have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2020). 2. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the U.S. Air Force from June 1966 to January 1970 with service in the Republic of Vietnam. The Board remanded the claims in September 2017 and April 2020. The matters are again before the Board. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Certain diseases, to include cardiovascular disease (including hypertension), may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. There is no evidence or contention that such disability manifested within one year of discharge from active service and, as such, further consideration of the foregoing provisions is not necessary. Alternatively, a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Such diseases do not include hypertension or sinusitis. 38 C.F.R. § 3.309(e). As such, further consideration of the Veteran's claims on a presumptive basis is not necessary. Notwithstanding the foregoing presumptive provisions, the Federal Circuit has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310. 1. Entitlement to a respiratory disability The Veteran contends that his chronic sinusitis had its onset during his active service and that since that time he has experienced on average 2 episodes of sinusitis per year. The Veteran's service treatment records include a January 1966 Report of Medical Examination prior to entrance into service that included a normal examination of the lungs. The Report of Medical History included the Veteran's denial of past or present asthma and shortness of breath. Thereafter, a history of asthma was noted in an April 1969 treatment note. A subsequent April 1969 record stated that the Veteran had asthmatic bronchitis secondary to humidity. The onset of problems had been at age 14 when he started gasping for breath. In June 1969, the treatment provider diagnosed anxiety manifested as bronchospasm (wheezing) and requested a psychiatric consult. A July 1969 record noted that the Veteran had a history of asthma that he said was worsened by his stay in the humidity of Vietnam. The impression by the mental health provider was bronchial asthma (by history). Another July 1969 record included treatment for schizophrenia reaction, undifferentiated, manifested by asthmatic attacks and other symptoms. The Veteran reported that he had experienced a form of asthma since age 7 that had worsened with his assignment to Vietnam and Guam. Yet another July 1969 mental health evaluation included a diagnosis of passive-aggressive personality disorder and the life-long history of bronchial asthma also was a product of the personality configuration. An October 1969 treatment record documented a history of asthma since age 9, but had experienced severe attacks in Vietnam. X-rays showed hyperinflation of the lungs consistent with asthma. The January 1970 Report of Medical Examination a normal examination of the lungs and chest. The examination report also stated that the Veteran had asthma in childhood, but his last attack was at 7 years old and had been asymptomatic since that time. In a contemporaneous Report of Medical History the Veteran reported a history of asthma, but denied a history of shortness of breath. The Veteran again reported a history of asthma in childhood, but his last attack was at 7 years old and had been asymptomatic since that time. In March 1998, a VA treatment record indicated that the Veteran had no history of asthma or wheezing. A November 2015 VA medical examination report is of record. The September 2017 Board remand found that examination report to be inadequate as the provided rationale was based on an inaccurate factual premise. A November 2017 VA medical opinion indicated that the Veteran had a diagnosis of asthmatic bronchitis since 1969. The reviewing medical professional concluded, "In my opinion the veteran's asthma did not pre-exist service. In my opinion it is at least as likely as not (greater than 50% probability) that the veteran does not have a respiratory disability." The rationale for the opinion included the Veteran's denial of a history of asthma and a normal lung examination in March 1966 prior to entrance into service. A history of asthma was not noted until an April 1969 treatment note. In June 1969, the treatment provider diagnosed anxiety manifested as bronchospasm (wheezing) and requested a psychiatric consult. The subsequent psychiatric note recorded a finding of anxiety reaction, severe, with bronchospasm. A July 1969 service record documented a life-long history of bronchial asthma that was a product of his personality configuration. The mental health assessment at the time was a passive-aggressive personality disorder. The reviewing medical professional noted the in-service diagnosis of bronchial asthma in May 1969, but stated, "In my opinion at the time his diagnosis was made, asthmatic bronchitis referred to a situation in which someone who developed bronchitis exhibited wheezing as one of their symptoms. Most cases of acute bronchitis are viral infections and get better without treatment, usually in a couple of weeks." The reviewing physician finally noted that post-service civilian and VA treatment records did not include treatment for or diagnosis of asthma. In a January 2020 statement, the Veteran stated, "I have never had or have now bronchial asthma. What I have had since Vietnam is chronic sinusitis. I have had sinus infections twice a year since leaving Vietnam and have been treated for his by my previous doctor [] and to the present." The Veteran was afforded a VA contract examination in February 2021. The examiner found that the Veteran did not have any respiratory disability. The Veteran reported that as a child he had asthmatic bronchitis, but had experienced no issues since that time. No respiratory problems were discovered on examination. Following examination, the examiner concluded that it was less likely than not that the Veteran had a respiratory disability that was incurred in or caused by service. The rationale indicated that based on separation examination that the Veteran had been diagnosed with childhood asthma, with his last attack at age 7. Since that time, however, he had been asymptomatic. The Veteran had some breathing problems during service in June 1967, but the symptoms were found to be secondary to anxiety. The Veteran denied any current asthma and there were no findings on examination to warrant a current diagnosis of asthma. The Veteran also underwent a VA contract sinusitis examination in February 2021. The examiner diagnosed chronic sinusitis. The Veteran reported onset of symptoms in 1969, with issues throughout his time in Vietnam. Since service, the Veteran had experienced intermittent sinus symptoms. Current symptoms included episodes of sinusitis and pain of affected sinus. He had experienced no incapacitating episodes in the last 12 months and 2 non-incapacitating episodes in the past 12 months. Following examination, the examiner concluded that it was less likely than not that the Veteran's chronic sinusitis was incurred in or caused by service. The rationale indicated that there was no finding of sinusitis in the service treatment records, including no findings or complaints of chronic sinusitis at separation from service. As to the Veteran's asthma noted during service, the Board concludes that he has not had a current diagnosis of asthma at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran has stated on multiple occasions that he has not been diagnosed with or treated for asthma for many years. The Board acknowledges the November 2017 medical opinion that the Veteran had a diagnosis of asthmatic bronchitis. It is unclear the basis for this diagnosis, but is inconsistent with the actual examinations of record and the Veteran's lay statements, which confirm the absence of ongoing asthma symptoms from service. Thus, there is no basis for granting entitlement to service connection for asthma. As to the Veteran's diagnosed sinusitis, the Board finds the February 2021 VA contract examination report of significant probative value. The examiner documented and considered the Veteran's contentions of in-service onset of sinusitis symptoms with ongoing problems from service. The examiner, however, found the absence of in-service findings of sinusitis and normal examination at separation without any complaints of sinus symptoms. The sole evidence in support of the Veteran's sinusitis claim are his lay statements that sinus symptoms had their onset during service and that he has experienced on average 2 episodes of sinusitis every year since service. The Board has "the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In this case, the "inherent characteristics" of the Veteran's current statements as to ongoing sinus symptoms during service are inconsistent with the contemporaneous lay and medical record. Specifically, in the Veteran's January 1970 Report of Medical History prior to separation from service he denied a history of nose or throat problems, sinusitis, or hay fever. He described his present health as "Good." The Veteran did discuss past problems with mumps and asthma in childhood, but made no mention of sinus symptoms. The Board acknowledges the case of Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), wherein the Court held that the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. In this case, however, the Veteran specifically denied a history of sinusitis and nose problems in January 1970 prior to separation from service. The Board finds it reasonable to conclude that had he been experiencing ongoing sinus problems during service that he would have reported such problems. For example, in the file of VA outpatient treatment records starting in about 2013, there is one notation in October 2015 of a report by the Veteran that he "just got sinus on return from Italy." Instead, he specifically denied a history of sinusitis or nose problems as there were opportunities to do so. As such, the Board finds the Veteran's current representations significantly outweighed by the contemporaneous evidence of record. See Caluza v. Brown, 7 Vet. App. 498 (1995) (holding that in weighing an applicant's credibility, the Board may consider any evidence of interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, and desire for monetary gain); see also Pond v. West, 12 Vet. App. 341 (1999) (noting that although Board must take into consideration a veteran's statements, it may consider whether self-interest may be a factor in making such statements). VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to and mere conclusory generalized lay statements that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. 2. Entitlement to service connection for hypertension The Veteran contends that his current hypertension was caused by in-service exposure to herbicide agents, to include Agent Orange. In the alternative, he asserts the hypertension was caused or aggravated by a service-connected disability, to include his mental health and heart disabilities. The Veteran's service treatment records do not include complaints, treatment, or diagnosis of hypertension. Again, the Veteran does not contend in-service onset and there is no medical evidence to suggest in-service onset. In a July 2012 notice of disagreement, the Veteran's agent stated that, "Hypertensive risk factors are prevalent among people with schizophrenia." The Veteran was afforded a VA examination in February 2015. The examiner provided a negative nexus opinion and determined that the Veteran's hypertension was less likely than not proximately due to, or the result of, a service-connected disability. The examiner provided a single sentence rationale, "There is a lack of objective medical evidence... that the Veteran's hypertension was the result of his service-connected adjustment disorder and [coronary artery disease]." The September 2017 Board remand found that examination report to be inadequate as the opinion "effectively provided no rationale." The Veteran was afforded a VA examination in November 2017. The April 2020 Board remand found this examination report to be inadequate. As such, the Board will not consider it further herein. In a January 2020 statement, the Veteran suggested that his hypertension was related to his service-connected ischemic heart disease. Specifically, he stated since his diagnosis of ischemic heart disease that he also had been on medication for hypertension and, "If the Aortic Dissection was caused by Ischemic Heart Disease and since that time my blood pressure was elevated enough to be on the above medication doesn't it make sense that the hypertension was also a problem caused by the same disease?" The Veteran was afforded a VA contract examination in February 2021. The examiner noted a diagnosis of hypertension since 1998. The Veteran had been diagnosed with hypertension at the time it was discovered that he had an aortic aneurysm. The condition had stayed the same since that time. Following examination, the examiner concluded, "Essential hypertension has no clearly identifiable cause, but is thought to be linked to genetics, poor diet, lack of exercise and obesity. There is no clinical reference that demonstrates Agent Orange causes Hypertension. There are no findings in the literature that demonstrate Adjustment disorder would cause or aggravate Hypertension. [Coronary artery disease] has not been clinically demonstrated to cause or aggravate Hypertension." The Veteran has a current diagnosis of hypertension. As such, the critical question is whether the hypertension was incurred in service, was otherwise caused service (to include exposure to herbicides during service in Vietnam), or was caused or aggravated by his service-connected acquired psychiatric and heart disabilities. Based on the evidence of record, the Board concludes it was not. Service personnel records show that the Veteran served in the Republic of Vietnam during the specified periods of time and is presumed to have been exposed to the designated herbicide agents. As noted above, there is no lay or medical evidence to suggest in-service onset of hypertension or manifestation of hypertension within one year of separation from service. As to the question of whether the hypertension was otherwise caused by service (specifically due to herbicide exposure) or was caused or aggravated by his service-connected acquired psychiatric and/or heart disabilities, the Board finds the February 2021 VA examination report of significant probative value. The examiner's opinions were based on an interview of the Veteran, his reported medical history, review of the claims file and medical evidence, and physical examination. Further, a complete and thorough rationale was provided for the opinions rendered. The examiner specifically concluded that there was no clinical evidence that Agent Orange or other herbicide agents caused hypertension or that the Veteran's acquired psychiatric or heart disabilities caused or aggravated hypertension. The Board finds the examination report findings to be the most probative evidence of record as to whether the Veteran's hypertension was due to in-service herbicide exposure or was caused or aggravated by his service-connected acquired psychiatric and/or heart disabilities. The Board also has considered the Veteran's contentions that his hypertension was caused by his in-service exposure to herbicides and/or were caused or aggravated by his service-connected acquired psychiatric and/or heart disabilities. In this regard, the Board acknowledges that the Veteran is competent to give evidence about what he experienced, including physically observable symptoms. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In addition, the Board recognizes that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Given the Veteran's lack of demonstrated medical expertise and the complexity of linking the etiology of his hypertension to herbicide exposure or his service-connected disabilities, however, the Board concludes that in this case his statements regarding any such link are of extremely limited probative value. The Board finds the contentions particularly problematic in the absence of a continuity of symptomatology from his herbicide exposure and/or the onset of his mental health problems. The Board acknowledges the Veteran's argument that he was diagnosed with hypertension at the same time as his heart disabilities, which he finds conclusively links the disabilities. That said, the mere proximity in time of the diagnoses is insufficient to demonstrate a link between the hypertension and heart disabilities, particularly given the negative medical evidence of an association. As such, the Board affords significantly greater probative weight to the conclusions of the above VA examiner. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The reason for this is that the VA examiner has medical training, reviewed the history, conducted an examination, and provided a medical opinion supported by a rationale. In conclusion, the February 2021 VA examiner clearly reviewed the Veteran's medical history, interviewed the Veteran, and offered a detailed rationale for the opinions. The Board finds this the most probative evidence of record and ultimately outweighs the Veteran's lay representations as to the etiology of his hypertension. There is no evidence of record that any other medical professional has linked the Veteran's hypertension to herbicide exposure or his service-connected acquired psychiatric or heart disabilities. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Houbeck, 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.