Citation Nr: 21026799 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 13-15 029 DATE: May 4, 2021 ISSUE Entitlement to service connection for hypertension, to include as due to herbicide exposure, or as secondary to service-connected diabetes mellitus. ORDER Entitlement to service connection for hypertension, to include as due to herbicide exposure, or as secondary to service-connected diabetes mellitus is denied. FINDINGS OF FACT 1. Hypertension was not manifest during active service, or until many years after service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 2. Hypertension was not caused or aggravated by the Veteran's service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension have not been met or approximated. 38 U.S.C. §§ 1110, 1112, 1113; 38 C.F.R. § 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1969 to September 1971, to include service in the Republic of Vietnam. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2015, the Veteran testified before a Veterans Law Judge. A copy of the transcript has been associated with the claims file. This hearing was before a now-retired judge. In March 2021 correspondence, the Veteran was given the opportunity to request another hearing and was notified that if he did not provide a response in 30 days, it would be assumed that he did not want another hearing. The Veteran did not respond to the letter, and the Board will therefore proceed. In September 2015, January 2018, December 2019, and September 2020 the Board remanded this claim for further development. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Therefore, the Board will proceed to the merits of the issue on appeal. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Further, service connection may be warranted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection requires (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). A disability deemed proximately due to or the result of a service-connected disease or injury shall be service connected ("secondary service connection"). 38 C.F.R. § 3.310 (a). 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. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (b). Finally, service connection can also be established based on herbicide agent exposure. 38 C.F.R. § 3.307(a)(6). For the purposes of determining herbicide agent exposure, a veteran who served in qualifying locations is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii). If the veteran is presumed to have been exposed to herbicides, the veteran is entitled to a presumption of service connection for certain disorders. See 38 C.F.R. § 3.309(e). This presumption is specifically limited to those diseases listed. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for hypertension, to include as due to herbicide exposure, or as secondary to service-connected diabetes mellitus. The Veteran is claiming service connection for hypertension, to include as secondary to his service-connected diabetes mellitus. The Veteran was granted service connection for his diabetes mellitus effective December 2009. The Veteran also contends that his hypertension is the result of his exposure to herbicide agents during his service in the Republic of Vietnam. In a December 2019 Board decision for the Veteran, the Board found that the Veteran had been exposed to herbicide agents, to include Agent Orange, during his assignment in Vietnam, based on the information in his personnel records. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). However, for this issue on appeal, the diseases associated with herbicide exposure for purposes of the presumption do not include hypertension. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. § 3.309(e); see 78 Fed. Reg. 54763 (Sept. 6, 2013). As such, presumptive service connection for the Veteran's claimed hypertension disability is not possible. However, where the evidence does not warrant presumptive service connection, a veteran is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1041 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. The Veteran's service treatment records contain no mention, complaint, or treatment for any hypertension. Notably, the Veteran's separation examination from September 1971 notes no problems with hypertension. The Veteran's claims file first contains a private treatment note regarding elevated blood pressure in August 2004. The Veteran's blood pressure was recorded as 130/90, with hypertension diagnosed and a daily dose of Norvasc was prescribed. An August 2010 private treatment note the Veteran's private doctor Dr. R.C. noted that the Veteran had hypertension as well as other medical conditions. He opined that "[s]ome of his medical problems could be related to prior agent orange exposure." During a July 2011 compensation and pension examination for diabetes mellitus, the Veteran's diabetes was noted with a diagnosis date of May 2005. It was also noted that the Veteran had a diagnosis of essential hypertension. At that time the examiner opined the Veteran's hypertensive condition was not a complication of his diabetes because it existed prior to the diagnosis of diabetes. In an October 2011 private treatment note Dr. R.C. stated that the Veteran has been diagnosed Type 2 diabetes mellitus. He further opined the Veteran's hypertension was more likely related to obesity, and not related to his diabetes. VA provided the Veteran with a VA examination in March 2013 to address his hypertension claim. This VA examiner provided a negative opinion for service connection, saying it was less likely than not, less than 50 percent probability, that the Veteran's hypertension was due to or aggravated by his diabetes. The examiner explained that the Veteran's diagnosis of hypertension was made in 2004 and the records show that is diabetes was diagnosed in 2005, therefore the diabetes did not cause his hypertension. The examiner further explained that based on the Veteran's lab work there was no evidence for sustained nephropathy, and therefore it was less likely than not the Veteran's hypertension was permanently aggravated by his diabetes mellitus. During the July 2015 Board hearing the Veteran's wife provided a written statement explaining that while the Veteran's hypertension was diagnosed prior to his diabetes, the Veteran had symptoms of diabetes earlier, but did not realize what they were and therefore did not report them to his doctors for quite some time. The Veteran testified that he noticed he had shaky hands which he initially attributed to the tension of his job while working for a transit company, but then he noticed he would have shakiness when he was not working. The Veteran's wife testified that a physician told them that there was a difference between essential and secondary hypertension, and it was never explained to them which type the Veteran had. In a September 2015 remand the Board determined that an addendum opinion would be needed to address the Veteran's lay statements from the July 2015 Board hearing that symptoms of his diabetes manifested prior to his 2005 diagnosis. The Board also determined that an addendum opinion was also needed to address a relationship based on aggravation. In April 2016 the claims file was returned to the March 2013 VA examiner. At that time a medical opinion and Disability Benefits Questionnaire (DBQ) was completed. The examiner stated that upon review of the entire claims file it was her opinion that it was less likely than not that the Veteran's hypertension was caused or aggravated beyond its natural progression by his diabetes mellitus. The examiner explained that the medical literature seems to most strongly support a connection between significant diabetic nephropathy and hypertension in diabetics. According to the examiner, significant diabetic nephropathy is evidenced by very elevated and persistently elevated proteinuria. The examiner explained that since the Veteran's August 2012 examination for diabetes, he has been noted to show very slightly elevated protein in his urine, and this amount is not to the level to be clinically significant, nor did the Veteran have a reduction in his renal function. In January 2018 the Board determined that as the examiner had still not accurately addressed the Veteran's lay statements as to the onset of his diabetes occurring prior to his hypertension, a remanded was needed for an addendum medical opinion. In August 2018 the claims file was again returned to the March 2013 and April 2016 VA examiner and a medical opinion and DBQ was completed. The examiner discussed the Veteran's July 2015 Board hearing in which he reported having tingling in his hands prior to his diagnosis of diabetes in 2005. The examiner explained that the Veteran was noted to have tingling and numbness in his hands at a 2011 EMG study, which he said had been present since 2001 and his diagnosis at that time included moderate bilateral carpal tunnel syndrome which can cause tingling in the hands and could be interpreted as shakiness. Upon review of the claims file the examiner opined that the Veteran's hypertension was less likely than not due to his diabetes. The examiner explained that the weight of the medical literature did not support that the Veteran's diabetes caused or aggravated his hypertension without there being clinically significant proteinuria present and attributed to a diagnosis of diabetic neuropathy. According to the examiner the Veteran was not noted to have kidney abnormalities attributed to his diabetes until May 2018. The examiner explained that clinically significant proteuria is usually defined by a ratio of greater than 300 mg/g and the Veteran's most recent microalbumin creatine ratio was 43 mg/g. Therefore, this did not support his diabetic nephropathy as causing or aggravating his hypertension. In December 2019 the Board found that, based on the Veteran's assertions that his hypertension could be related to his Agent Orange exposure an addendum opinion would be needed to address this contention. Amongst other instructions, the Board directed the examiner to consider a recent update from the National Academy of Medicine's "Veterans and Agent Orange: Update 11 (2018)". See Nat'l Acad. of Sci., Eng., and Med., Veterans & Agent Orange: Update 11 (2018) at 7 (November 15, 2018). According to this report, hypertension was upgraded from its previous classification in the category of "limited or suggestive" evidence of an association to the category of "sufficient" evidence of an association. According to the National Academy of Sciences (NAS), "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. Id. In February 2020 the Board-directed medical opinion and DBQ was completed. In providing an opinion on direct service connection the examiner opined that it was less likely than not that the Veteran's hypertension was caused by an in-service event. The examiner explained hypertension is very common in the general population and most cases are essential and have no secondary cause. Furthermore, according to the examiner there was no objective medical or scientific evidence that herbicide exposure causes or aggravates hypertension. The examiner stated that the NAS report does not establish an objective relationship between herbicide exposure and hypertension. In providing an opinion on secondary service connection the examiner opined that it was less likely than not that the Veteran's hypertension was due to or aggravated by his diabetes. The examiner explained that there is no objective evidence that the Veteran has a diagnosis of diabetic nephropathy. According to the examiner the etiological process with which diabetes causes and/or aggravates hypertension requires that there be kidney damage in the form or nephropathy. Without this objective diagnosis, the examiner explained that there is no objective medical or scientific evidence that the Veteran's diabetes has any effect on his hypertension. In September 2020 the Board found the February 2020 VA opinion to be insufficient as the examiner did not meaningfully consider and discuss the NAS report or consider the specific facts of the Veteran's case. The matter therefore was remanded for an addendum opinion to be issued. In November 2020 a medical opinion and DBQ was completed. The examiner noted that the Veteran's records document the diagnosis of essential hypertension. The examiner opined, following a review of all available records, that it was less likely than not that the Veteran's hypertension had its onset during service or was otherwise etiologically related to his presumed herbicide exposure. This examiner also considered but rejected the question of whether the Veteran's hypertension was related to the statements in the NAS report because, as she explained, while it may be factually correct that there is an increased risk of hypertension with Agent Orange, it is quite specific to a certain cohort, and the NAS study does not support a broader connection to soldiers not involved in spraying within the Army Chemical Corp. The examiner went on to point out that the Veteran's DD 214 did not document him to be in the Army Chemical Corp. The examiner explained that while the etiology of essential hypertension is not clear, risk factors supported by medical literature include obesity/habits, aging, lifestyle, dietary and genetic factors. In conclusion the examiner also pointed out that the records support an adequate treatment for hypertension and therefore there was no aggravation of the condition identified or supported in the record. In December 2020 additional medical records were received and added to the Veteran's claim file. The file was returned to the November 2020 examiner and an addendum medical opinion was completed in January 2021. The examiner explained that after reviewing all available records, including the additional evidence since her November 2020 opinion, she determined that her opinion remained unchanged. She explained that the additional evidence supports ongoing stability of the Veteran's hypertension with stable, objective blood pressure readings on stable treatment medications. In weighing the etiological opinions of record the Board first looks to the August 2010 opinion of the Veteran's private doctor, Dr. R.C. This opinion however appears speculative as it uses the language "could be related" when opining on a nexus between the Veteran's herbicide exposure and his current medical problems. Bloom v. West, 12 Vet. App. 185, 187 (1999) (stating that medical opinions that are equivocal in nature, such as those expressed in speculative language (e.g., "could have caused", etc.), do not provide the degree of certainty required for medical nexus evidence); Black v. Brown, 5 Vet. App. 177, 180 (1993); Reonal v. Brown, 5 Vet. App. 458, 460 (1993). Therefore, as the August 2010 opinion is speculative in nature the Board affords this opinion limited probative value. Furthermore, it is important to note that after further treatment of the Veteran, the same examiner opined in October 2011 that he believed that the Veteran's hypertension was more likely related to his obesity. In contrast, Board finds the August 2018, November 2020 and January 2021 VA opinions to be of great probative value. Indeed, the examiners considered the Veteran's contentions, the claims file, and clinical medical evidence before providing negative opinions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The examiners negative opinions were supported by a sufficiently clear and well-reasoned medical rationale and was consistent with the verifiable facts regarding the Veteran's contentions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). For example, as it relates to secondary service connection, the August 2018 examiner stated that the medical literature does not support diabetes causing or aggravating hypertension without clinically significant proteinuria present, which was not evidence by the Veteran's lab work. Additionally, as it relates to service connection based on in-service herbicide exposure the November 2020 examiner determined that the Veteran's military personnel records did not support a connection for hypertension based on his level of exposure to Agent Orange. There is no evidence that the August 2018, November 2020 and January 2021 VA examiners were not competent or credible, and as their reports were based on accurate facts and objective examinations, the Board finds that they is entitled to significant probative weight as to the etiology of the Veteran's hypertensive disability. See Nieves-Rodriguez, Id. The Board acknowledges that the Veteran is competent to provide statements as to his beliefs that his hypertension is related to service. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). In order for lay evidence to be competent, the individual must have personal knowledge, derived from his/her own senses, of what is being attested; "[c]ompetent testimony is thus limited to that which the witness has actually observed, and is within the realm of his personal knowledge." Layno v. Brown, 6 Vet. App. 465, 471 (1994). Here, the Veteran is competent to provide statements about his symptoms relating to his claimed hypertension. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology of such a condition of any kind. See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, his assertions to that effect are of no probative value. In addition, the Board finds that the almost 33-year gap in time between the Veteran's last date of active service, in September 1971, to his initial evaluation by any medical provider regarding his hypertension in August 2004 to be probative of a lack of nexus between the diagnosed current disability and active service. A negative inference may be drawn from the absence of complaints or treatment for an extended period. 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). There are no competent medical opinions of probative value in favor of a positive nexus to active service from any VA examiner or medical treatment provider from any source. Upon review of the record, the Board concludes that entitlement to service connection for hypertension is not warranted, either via direct or secondary service connection. The Board notes a current diagnosis of essential hypertension, and thus the requirement for a current disability is shown. The Board acknowledges the Veteran's contentions, and the Veteran's post-service statements are noted. However, the record is silent for mention of hypertension until the Veteran began to receive treatment in August 2004, and there is no competent evidence to tie the current assertion to any in-service disease or injury. The Board thus finds the Veteran fails the third prong of the test for entitlement to service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. In summary, the medical evidence in this case outweighs the Veteran's assertions that his current hypertension is of service origin or was caused or aggravated by his service-connected diabetes mellitus. For these reasons, the preponderance of the evidence is against the claim and service connection for hypertension is not warranted. As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application. 38 U.S.C. § 5107(b), 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, Associate 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.