Citation Nr: 21026926 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-38 049 DATE: May 4, 2021 ORDER Entitlement to service connection for hypertension is denied. FINDING OF FACT The Veteran's hypertension did not begin during service or within one year of service separation and is not otherwise related to his time in service, to include presumed herbicide exposure. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from December 1967 to July 1969. This case comes before the Board of Veterans Appeals (Board) from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran participated in a hearing before the undersigned Veterans Law Judge (VLJ) in February 2020. In March 2020, the Board remanded this claim for further development, namely, to obtain a VA examination. The development was performed, and the claim returns to the Board. Service Connection Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, such as hypertension, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing the second and third Shedden elements for disabilities identified as chronic diseases in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown if "the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Savage v. Gober, 10 Vet. App. 488, 498 (1997). Before deciding a claim, the Board is required to evaluate all relevant evidence on appeal, including lay and medical evidence. See 38 U.S.C. § 7104(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a determination as to the competency, credibility, and weight of the evidence. Lay evidence may be competent and sufficient to establish a claim for service connection. Specifically, lay evidence may be sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board must then determine whether the evidence is credible or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of the relevant evidence, the Board must weigh its probative value. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for hypertension, to include as secondary to herbicide exposure The record reflects that the Veteran has hypertension which was first diagnosed around 1986. Therefore, the first Shedden elementthat of a current disabilityis satisfied. The Board also concedes the Veteran's exposure to herbicides as he was stationed in Vietnam. Additionally, the Board concedes that the Veteran experienced stress related to bombings and near-death experiences when under assault. Therefore, the second Shedden element is satisfied by each. As such, the remaining question is whether there is a link between them. Preliminarily, while hypertension has not been added to the list of presumptively connected disabilities due to herbicide exposure, this does not prevent the Veteran from proving causation on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). To that end, the Board asked the VA examiner on remand to discuss the Veterans and Agent Orange Update 11 (2018), in which the National Academies of Science, Engineering and Medicine (NASEM) upgraded hypertension from its previous classification in the category of "limited or suggestive" evidence of an association with exposure to Agent Orange to the category of "sufficient" evidence of an association, indicating that there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and herbicide exposure. The Board additionally asked the examiner to discuss the Veteran's near-death experiences in the etiological opinion. As stated above, the Veteran was first diagnosed with hypertension around 1986. In a February 2020 Disability Benefits Questionnaire (DBQ), the examiner noted that the Veteran has had hypertension for many years and is well-controlled with medical therapy. In his February 2020 hearing, the Veteran reported receiving treatment for hypertension every 3 months. He was unsure what caused the hypertension but stated that he guessed it was the influx of bombings, near-death experiences, and assault he experienced during service. A February 2020 letter from Dr. D.G. states that the Veteran has been a patient of his for many years and opined that his hypertension is at least as likely as not related to service. The letter did not include any rationale. In a June 2020 VA medical opinion, the VA examiner stated that the Veteran's hypertension was less likely than not related to service. The examiner reasoned that the Veteran was not diagnosed with or treated for hypertension in service or within 1 year of separation, that his separation examination noted normal blood pressure, and that his first diagnosis in 2010 was many years post separation. The Board finds this examination inadequate, however, as it failed to discuss the NASEM update and the Veteran's near-death experiences, and is based on an incorrect factual basis as the Veteran was first diagnosed with hypertension in 1986, not 2010. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). No weight is afforded to this opinion. In an addendum June 2020 medical opinion, the VA examiner opined that the Veteran's hypertension was less likely than not related to service. He provided a similar reason as stated above. He added that while recent studies have shown an association with hypertension and veterans assigned to the chemical corps, there was no such association to other military occupational specialties, as the exposure to herbicides was limited. Similar to the above, the Board affords this examination no weight as failed to discuss the Veteran's near-death experiences, based on incorrect facts (the Veteran was diagnosed with hypertension in 1986, not 2010), and because the VA examiner opined on elements outside the scope of medicine, namely, the amount of herbicides the Veteran was exposed to while in Vietnam. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). In an August 2020 VA addendum opinion, the examiner again opined that the Veteran's hypertension was less likely than not related to service. This time, the VA examiner reasoned that the Veteran's hypertension did not onset in service, or within 1 year of service. He additionally stated that while the NASEM study concludes that there is an association between herbicide exposure and hypertension, such association is not evidence of causation, and the other relevant medical literature concludes that there is no objective evidence that hypertension is caused by herbicides. The VA examiner lastly stated that the Veteran's hypertension is not related to stress from his near-death experiences. The VA examiner explained that causes of hypertension include obstructive sleep apnea, kidney problems, adrenal gland tumors, thyroid problems, certain congenital blood defects, medications, or illegal drugs. Based on the foregoing, the Board finds, first, that there is no evidence that the Veteran's hypertension manifested in service or to a compensable degree in the first year following his separation from service. Even with the earliest date of diagnosis of hypertension being 1986, this is still 17 years after separation from service. Consequently, service connection for hypertension on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. Notably, the Veteran has not submitted competent evidence to show that he has suffered from hypertension continuously since separation from service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). There is also no competent and probative evidence that the Veteran's hypertension is otherwise related to service. The Veteran's post-service treatment records, while providing a February 2020 opinion relating to his hypertension to service, are silent as to any rationale for such a conclusion. Furthermore, the August 2020 VA addendum medical opinion found that the Veteran's hypertension is not related to service, to include both his conceded herbicide exposure and his near-death experiences. The August 2020 VA medical opinion stated that while the NASEM study found an association between herbicides and hypertension, such association does not mean that one causes the other. Furthermore, this opinion stated that the stress induced from near-death experiences is not among the causes of hypertension. While the February 2020 private letter provided a positive nexus opinion, it failed to include a rationale and is thus outweighed by the thorough, and well-reasoned August 2020 VA medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the claim thus fails on a direct basis as Shedden element threea nexus between the Veteran's claimed hypertension and servicehas not been established. The Board has considered the lay evidence in this case, in particular the Veteran's statements that he believes was caused by his service. However, this evidence is not competent evidence, as he is a layperson and lacks the training to provide an adequate opinion regarding medical etiology. Specifically, the Veteran lacks the training to opine whether his hypertension, in the absence of credible evidence of continuity, as here, is related to an incident in service. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Court.). Also, hypertension is a disease of the cardiovascular system, and the record does not show that the Veteran has training or education in these medical fields; therefore, lay evidence of the etiology is not competent nexus evidence as it is not capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70. Thus, the Veteran is not competent or qualified, as a layperson, to render an opinion on medical causation. In light of the above, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for hypertension. Accordingly, the claim must be denied. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.