Citation Nr: 21029031 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-53 329 DATE: May 12, 2021 ORDER Entitlement to service connection for hypertension, to include as secondary to the Veteran's already service-connected diabetes mellitus, is denied. FINDING OF FACT The Veteran's hypertension was not shown in service or for many years thereafter, and it was not proximately due to or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303(a), 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1968 to January 1970, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In an April 2019 decision, the Board denied the Veteran's claim of entitlement to service connection for hypertension. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (Court). In February 2020, the Court granted a Joint Motion for Partial Remand (JMPR) filed by representatives for both parties and remanded the claim to the Board for further proceedings consistent with the JMPR. The case has returned to the Board for further appellate proceedings. This matter was previously remanded by the Board in July 2020. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. (1998). The case has been returned to the Board for review. The Veteran has other claims on appeal that are not yet ready for adjudication, as such, the Board will not accept jurisdiction over any other claims at this time. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic diseases in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Moreover, even if a condition noted during service is not shown to be chronic, evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). Finally, VA regulations state that 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 an herbicide agent containing dioxin, 2,4-Dichlorophenoxyacetic acid or 2,4,5-Trichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6). Notably, these were the key compounds found in the tactical herbicides used during that time, with "Agent Orange" being the most common. Service connection is warranted for a veteran who has been exposed to toxic herbicide agents 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 chloracne, Type 2 diabetes, Hodgkin's disease, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, multiple myeloma, respiratory cancers (cancer of the lungs, bronchus, larynx, or trachea), soft-tissue sarcomas, ischemic heart disease, Parkinson's disease, B-cell leukemias and prostate cancer. Moreover, service connection is warranted even if these disorders were not shown during active duty. 38 C.F.R. § 3.309(e). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d); Cosman v. Principi, 3 Vet. App. 503 (1992). Service connection also may be established on a secondary basis for disability that is proximately due to, the result of, or being aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on this alternative secondary basis requires having evidence sufficient to show: (1) that a current disability exists, and (2) that the current disability was either (a) proximately caused or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). 1. Entitlement to service connection for hypertension The Veteran asserts that his hypertension had its onset during service or is otherwise related to service to include toxic herbicide exposure. He alternatively contends that symptoms of his service-connected diabetes mellitus caused or aggravated his hypertension. As a preliminary matter, the evidence indicates that the Veteran served in Vietnam, and therefore he is presumed to have been exposed to herbicides for purposes of presumptive service connection under 38 C.F.R. § 3.309(e). Nevertheless, the evidence does not indicate, and the Veteran does not assert, that he has a condition listed under 38 C.F.R. § 3.309(e). As a result, presumptive service connection due to herbicide exposure is not for application. Next, the Board concludes that while the Veteran is diagnosed with hypertension, the preponderance of the evidence weighs against finding that his hypertension began during service or is related to an already service-connected disability. Specifically, the service treatment records are silent for any chronic complaints, symptoms, or a diagnosis relating to hypertension. The Veteran's December 1969 separation examination shows he had normal blood pressure at separation. The objective medical evidence does not demonstrate any chronic symptoms, or a diagnosis of hypertension until many years after service, approximately 2007. Moreover, the Veteran has not asserted continuous symptoms since service. Therefore, continuity of symptoms has not been shown based on the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). Next, despite the absence of continuous symptoms since service, service connection may nonetheless be established if a relationship may be otherwise established by competent medical evidence. In this case, a medical nexus has not been established. The Board places significant probative value on the January 2021 VA examiner's opinion where he opined that the Veteran's hypertension was less likely than not caused by the Veteran's diabetes. In support of this conclusion, the examiner noted that the was diagnosed with both disorders around the same time, but that his blood pressure has remained controlled with medication. He additionally noted that his kidney functions have remained normal throughout the course of the illness. He further noted that the Veteran has never been hospitalized for poor blood sugars or ketoacidosis, which makes the likelihood of the 1992 or 2012 medical articles unlikely support for nexus. Additionally, he stated that the Veteran has other factors that would make him a high-risk factor for the development of hypertension such as dyslipidemia and alcohol use disorder. He further stated that the Veteran was did not display symptoms of hypertension until 38 years after service making it less likely than not related to service at all including conceded toxic herbicide exposure. This opinion is supported by the VA examiner opinion in December 2011 where the examiner stated that the Veteran has no diabetic nephropathy and therefore, the hypertension was not caused by his diabetes. He further stated there is no evidence that his hypertension was aggravated by his blood pressure readings. The January 2021 opinion is also supported by a VA examiner's opinion in October 2014 where the examiner stated that the Veteran's benign essential hypertension is neither due to, caused by, the result of nor aggravated by the Veteran's Type II diabetes. His kidney function is normal, and the medical literature does not support that the uncomplicated diabetes causes, results in or aggravates hypertension. The Board acknowledges the private medical opinion provided by the Veteran's private medical provider that stated that the Veteran's hypertension is directly and casually related to the atheromatous and arteriosclerotic vascular pathology associated with type II diabetes. However, the Board assigns this opinion less probative weight as it is conclusory, and the provider does not provide any medical rationale. Additionally, the Board acknowledges the 1992 and 2012 medical literature the Veteran submitted. However, these journals were not submitted with medical opinions to apply them specifically to the Veteran's medical history, ans as such they are less probative as well. Therefore, the Board places more probative value on the well-reasoned and adequately supported opinions from the January 2021 VA examiner. In arriving at this conclusion, the Board has also considered possible statements made by the Veteran relating his hypertension to his active service. The Federal Circuit has held that "[l]ay 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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding a diagnosis and/or etiology of his hypertension. See Jandreau, 492 F.3d at 1377, n.4. Because hypertension is not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed diagnosis and etiology of the Veteran's disorder are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Billinger, Associate Counsel