Citation Nr: 21030068 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-36 443 DATE: May 17, 2021 ORDER Entitlement to service connection for hypertension, to include as due to herbicide exposure and as secondary to a service-connected heart disability, is denied. FINDING OF FACT The Veteran's hypertension was not etiologically related to service, caused by exposure to an herbicide agent, did not manifest within one year of separation from active service, and was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1963 to June 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office. In March 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the evidentiary claims file. This matter was most recently remanded to the agency of original jurisdiction (AOJ) by the Board in March 2021 for further development. The AOJ obtained a medical opinion regarding herbicide exposure and secondary service connection for the Veteran's hypertension, and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish an entitlement to service connection for a disability, a Veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Determinations regarding service connection are based on a review of all of the evidence in the record, including all pertinent medical and lay evidence. 38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.303(a) (2019). A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2007) Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the list of diseases provided in 38 C.F.R. § 3.309 (e) shall be service-connected if the requirements of 38 U.S.C.A. § 1116, 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.A. § 1113, 38 C.F.R. § 3.307 (d) are also satisfied. Moreover, a presumption of service connection based on exposure to herbicides, to include Agent Orange used in the Republic of Vietnam during the Vietnam era, is not warranted for any condition for which VA has not specifically determined a presumption of service connection is warranted. See 72 Fed. Reg. 32,395 (2007). Service connection may also be established on a secondary basis for any disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App., at 54. Factual Background For hypertension, regulations provide that hypertension for VA purposes means that the diastolic blood pressure is predominantly 90 or more or systolic blood pressure is predominantly 160 or more. Hypertension must be confirmed by readings taken two or more times on three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). The Veteran seeks service connection for hypertension. He contends that his hypertension is secondary to his service-connected heart disability, or, in the alternative, is due to his active service and herbicide exposure in Thailand. See e.g., Veteran's September 2012 VA Form 4138, Statement in Support of Claim. Review of the Veteran's service treatment records (STRs) do not show a diagnosis of hypertension. Hypertension was noted on his entrance examination in June 1963 as 138/86. At the separation examination in July 1968 his blood pressure was again identified as 138/86. Review of private medical records reflect a diagnosis of hypertension was noted in September 2005. See September 5, 2005 Kaiser Permanente treatment record, received July 22, 2012. His blood pressure was recorded as 156/90. The Veteran was advised to go directly to the emergency room as he was experiencing chest pain and had abnormal findings on EKG. Id. The Veteran was afforded a VA examination in November 2020, and the examiner opined that the Veteran's hypertension was less likely than not related to any incident of the Veteran's active duty service. As rationale, the examiner relied on the Veteran's STRs, citing an absence of physician encounters for elevated blood pressure and both enlistment and separation examinations that showed normal blood pressure readings of 138/86. Pursuant to the March 2021 Remand, a VA medical opinion was obtained in April 2021, specifically on the issues of secondary service connection for hypertension and service connection due to herbicide exposure. The examiner reviewed the Veteran's medical records and the evidentiary claims file, noting the diagnosis of hypertension. Although the Veteran reported to the examiner that hypertension had its onset and treatment in 1986, within the year following discharge, the examiner noted that it was unclear from the record when the diagnosis was actually rendered. Thus, the examiner opined it was less likely than not that hypertension was incurred in or due to service, including Agent Orange exposure, as there was no evidence of hypertension while in service. As further rationale, the examiner cited the 1968 report of medical history where the Veteran answered negatively for blood pressure issues and had a blood pressure reading of 138/86. The April 2021 examiner explained that the 2018 National Academy of Science (NAS) review suggested an association between hypertension and the herbicide Agent Orange but did not establish cause and effect. He identified that the current, widely accepted, peer-reviewed literature had not established remote Agent Orange exposure as a cause of hypertension. Further, the examiner indicated that a search of Up to Date, a respected, professional medical resource used to access current treatises and literature/studies, did not return articles linking Agent Orange as a cause of hypertension. The examiner determined that because hypertension was not present while in service, exposure to the herbicide Agent Orange could not aggravate it during in service or presently. Moreover, the April 2021 examiner found that there was no evidence of aggravation of the Veteran's hypertension beyond its natural course due to any cause, including the service-connected heart disability. The examiner noted that there was no end-organ damage attributed to hypertension and the Veteran's renal labs were completely normal in August 2020. Also, the examiner reported that the Veteran's blood pressure was well controlled on medication, citing the average reading at the November 2020 hypertension VA examination as 130/80. In addition, the April 2021 examiner specifically reported that coronary artery disease (CAD) does not cause hypertension. The examiner explained that essential hypertension is due to increased peripheral vascular resistance while CAD is due to occlusion of the blood vessels supplying the heart, and the two disabilities are separate anatomically and pathophysiologically. He therefore found there was no physiologic mechanism by which CAD can cause or aggravate the Veteran's hypertension beyond its natural course. Adjustments of medication and dosage were noted as common in the natural course of treatment for hypertension and not necessarily representative of aggravation. Accordingly, the examiner opined it was less likely than not that the Veteran's hypertension was due to or aggravated beyond its natural condition due to his service-connected heart disability. Analysis 1. Direct and Presumptive Service Connection The Board finds that service connection for hypertension on a direct basis, to include as due to the herbicide Agent Orange, is not warranted. The record does not show evidence of hypertension in service or within one year of the Veteran's separation from active duty. The first competent evidence suggestive of hypertension was after military service in September 2005, when it was noted in the Veteran's private treatment records. As there is a current hypertension disability, the first element of service connection is satisfied. However, a Veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). As noted above, service connection may be granted on a presumptive basis for certain chronic diseases, including hypertension, if such disabilities are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this instance however, service connection for hypertension on a presumptive basis is not warranted as the record does not show evidence of hypertension within one year of the Veteran's separation from active duty. There are no medical records available for review related to the Veteran's diagnosis and treatment of hypertension, to include blood pressure readings or medications, within one year of his discharge from service in 1976. Further, there are no other mentions of treatment for hypertension in the evidentiary claims file until the 2005 private physician's report, indicating the Veteran was diagnosed with hypertension. This is more than 35 years after active duty service. Thus, as there is no competent evidence that the disability was manifested to a compensable degree within one year of his active service and was continuous since service, a presumption of service connection under 38 U.S.C.A. §§ 1112, 1137 and 38 C.F.R. §§ 3.307, 3.309 cannot be applied. To the extent that the Veteran is asserting that he experienced continuing symptoms of hypertension after separation from active duty service, the Board acknowledges that a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, as the evidence does not illustrate a diagnosis of hypertension until many years after service and there was a significant period between his service and his post-service diagnosis where the medical record was silent for complaints related to hypertension, the Board concludes that the weight of the evidence is against a finding of any continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Turning to whether hypertension is related to herbicide exposure, the Veteran is service connected for residuals of coronary artery bypass grafting surgery, to include ischemia, heart attack, CAD, and atrial fibrillation, because of exposure to Agent Orange while in Thailand. Thus, the Veteran's exposure to herbicides has been conceded by VA. However, the Board finds that the preponderance of competent and credible evidence weighs against finding that the Veteran's hypertension was due to such exposure. Hypertension is not listed in the enumerated presumptive diseases for Agent Orange herbicide exposure. See 38 C.F.R § 3.309(e). Thus, the claim of service connection for hypertension based upon the regulatory presumption for herbicide exposure is not warranted. Further, the April 2021 VA examiner opined that hypertension was less likely than not related to Agent Orange herbicide exposure, explaining that Agent Orange is not a known risk factor for hypertension. Specifically addressing the article from NAS which suggested a link between hypertension and Agent Orange, as directed in the March 2021 remand directives, the examiner explained the article was not accepted in mainstream medicine because it failed to establish a cause and effect relationship. In addition, the examiner reviewed a respected medical database and could not locate any research which illustrated an etiological link between herbicide/Agent Orange exposure and hypertension. As noted above, the Board considers the evidence competent, credible, highly probative. While the Veteran believes his hypertension was caused by herbicide exposure during active duty service, he is not competent to provide a nexus opinion in this case. The issue is medically complex, involving the interaction of organ systems in the body, and falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Thus, the Veteran's lay opinions are outweighed by the VA examiner's findings. Regarding whether the disability is otherwise directly related to service, the Board again notes that the Veteran's service treatment records are negative for complaints or treatments of hypertension or high blood pressure. His May 1967 separation examination was also negative for hypertension or high blood pressure complaints or treatments, reflecting a blood pressure of 138/86. Accordingly, the Board finds service connection for hypertension on a direct basis, to include based on exposure to the herbicide Agent Orange, is not warranted. 2. Secondary Service Connection Turning to the secondary service connection claim, the April 2021 examiner specifically reported that CAD does not cause hypertension and there was no evidence of aggravation of the Veteran's hypertension beyond its natural course due to any cause, including the service-connected heart disability. As noted above, the examiner identified a separate pathology for both diseases, and opined that hypertension was less likely than not due to or aggravated beyond its natural condition due to his service-connected heart disability. Accordingly, the Board finds there is no nexus between the Veteran's hypertension and his service connected heart disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board acknowledges the Veteran's assertion that his hypertension is secondary to his heart disability. He is competent to report that he was told by a physician that he has hypertension. However, he is not competent to provide a nexus opinion in this case. The issue is medically complex, involving the interaction of organ systems in the body, and falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Thus, the Veteran's lay opinions are outweighed by the VA examiner's findings. Based on above, the Board finds that the preponderance of the evidence is against finding that the Veteran's hypertension began during active service, is associated with his military service, to include herbicide/Agent Orange exposure, or is secondary to his service-connected heart disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply here. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Consequently, the claim of service connection for hypertension, to include as due to herbicide exposure and as secondary to a service-connected heart disability, is denied. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Gipson, 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.