Citation Nr: 21031879 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 13-33 464 DATE: May 24, 2021 ORDER Entitlement to service connection for hypertension, including as due to herbicide exposure, is denied. REMANDED Entitlement to service connection for a skin disorder, other than squamous cell carcinoma, including as due to herbicide exposure, is remanded. FINDINGS OF FACT 1. The Veteran is currently diagnosed with hypertension. 2. There was no cardiovascular injury or disease during service and symptoms of hypertension did not begin during active service and were not chronic in service. 3. Hypertension did not manifest to a compensable degree within one year of active service. 4. Symptoms of hypertension were not continuous since service. 5. During service the Veteran served in the Republic of Vietnam so is presumed to have been exposed to the herbicide Agent Orange. 6. The currently diagnosed hypertension is not due to the in service exposure to the herbicide Agent Orange. CONCLUSION OF LAW Hypertension was not incurred in active service and may not be presumed to have been incurred in active service. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active service from November 1965 to February 1967. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, in pertinent part, denied service connection for the issues on appeal. During the course of this appeal, in an August 2020 rating decision, the RO granted service connection for squamous cell carcinoma; however, as discussed in the remand section below, the evidence of record reflects that during the course of this appeal the Veteran has been diagnosed with multiple skin disorders. As such, the skin disorder issue on appeal has been reframed as entitlement to service connection for a skin disorder, other than squamous cell carcinoma, including as due to herbicide exposure. This matter was previously before the Board in October 2015. At that time the Board remanded the remaining issues on appeal for additional development. Upon the matter being returned to the Board, in October 2018 VA sought a Veterans Health Administration (VHA) opinion concerning the issues on appeal. As the subsequently received December 2018 VHA opinion was inadequate, the Board again remanded the issues on appeal in a subsequent June 2019 decision. As the Board must once again remand the issue of service connection for a skin disorder for additional development, no further discussion of remand compliance is necessary as to that issue. Concerning the issue of service connection for hypertension, review of the record reflects that all prior remand directives have been adequately satisfied, and the issue is ripe for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran testified from Columbia, South Carolina, at a July 2015 Board videoconference hearing before the undersigned Veterans Law Judge, who was seated in Washington, DC. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision remands the issue of service connection for a skin disorder, no further discussion of the duties to notify and assist is necessary as to that issue. Concerning the issue of service connection for hypertension, as to the duty to notify, the record reflects that the Veteran received adequate VCAA notice during the course of this appeal. Regarding the duty to assist, the record reflects that VA obtained all relevant documentation to the extent possible and obtained an adequate medical opinion in July 2020. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). For these reasons, the Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. 1. Service Connection for Hypertension is Denied. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Hypertension is a chronic disease under 38 C.F.R. § 3.309(a). As such, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable to the issue on appeal. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served 90 days or more of active service, and a chronic disease 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, 1133, 1137 (2012); 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. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(c), 3.313 (2017). This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. Hypertension is not a disability subject to presumptive service connection due to herbicide exposure. 38 C.F.R. § 3.309(c). Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). The Board has thoroughly reviewed all the evidence in the claims file and adequately addresses the relevant evidence in the instant decision. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The Veteran seeks service connection for hypertension, which the Veteran contends is related to presumed in service exposure to the herbicide Agent Orange. Review of the evidence of record, to include the report from a January 2020 VA hypertension examination, indicates that the Veteran is currently diagnosed with hypertension. Pursuant to Diagnostic Code 7101, Note 1, for VA rating purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 millimeters (mm.) or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104. Service treatment records reflect that during service no diastolic blood pressure readings of 90mm. or greater were recorded and there were no other findings or indicators of hypertension. At the time of the February 1967 service separation examination, the Veteran's blood pressure was 138/84, with no diagnosis of hypertension at that time. In the corresponding report of medical history, the Veteran denied having a history of high blood pressure. For these reasons, the Board finds that there was no cardiovascular injury or disease during service, and symptoms of hypertension were not chronic in service. The evidence also shows that symptoms of hypertension were not continuous after service, including not to a compensable degree within one year of service. The first diagnosis of hypertension is on or about 1990. Per multiple VA treatment records, to include an April 2005 VA treatment record, the Veteran was diagnosed with hypertension in July 2003. Nonetheless, in the October 2010 claim, the Veteran reported that hypertension began on or about 1990, and that treatment for the disability had continued to the present. Further, in an April 2019 lay statement, the Veteran conveyed having high blood pressure soon after service; however, the Veteran also advanced receiving treatment for the high blood pressure for the past 30 years, which would put onset on or about the late 1980s, which is well after one year from service separation. Finally, the Veteran received a new VA hypertension examination in January 2020. At that time, the Veteran advanced that "he began having hypertension not long after he returned from Vietnam in 1967." Nonetheless, per the examination report, the VA examiner found that the Veteran was diagnosed with hypertension in 1990. The Board notes that throughout the course of this appeal the Veteran has offered conflicting reports concerning when hypertension and/or symptoms of hypertension first manifested. At the time of a July 2014 decision review officer (DRO) hearing, the Veteran denied having high blood pressure symptoms in service. While the Veteran did testify to thinking that he was diagnosed with hypertension in the early 1970s, the Veteran also testified to not being placed on blood pressure medications until the mid-1970s. At the July 2015 Board videoconference hearing, the Veteran testified to receiving treatment for high blood pressure, to include taking medication, sometime between 1968 and 1970, years earlier than the testimony offered in July 2014. The Veteran denied having blood pressure problems during service. Subsequently, the Veteran received a VA hypertension examination in October 2017. At that time, the Veteran told the VA examiner that he had elevated blood pressure readings during service, and that he was placed on blood pressure medications soon after separating from service. This is in direct contradiction to the service treatment records and the Veteran's prior lay statements and testimony. While the Board has considered the Veteran's more recent lay statements concerning elevated blood pressure during service and treatment and diagnosis of hypertension soon after service, the Board finds these lay statements and testimony to be outweighed by the more contemporaneous lay and medical evidence of record. As discussed above, at the time of the October 2010 claim, the Veteran advanced being diagnosed with, and treated for, hyperextension on or about 1990. This date was much closer in time to the date of diagnosis found within the VA treatment records (July 2003). Such contemporaneous lay and medical records are more credible/probative than the Veteran's later lay statements and testimony that pushed the date of treatment/diagnosis for high blood pressure/hypertension earlier and earlier. See Curry v. Brown, 7 Vet. App. 59 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran; affirming Board decision that cited from MCCORMICK ON EVIDENCE (3rd ed.1984) for the proposition that "memory hinges on recency" and that earlier statements are generally more trustworthy than later ones). Such a finding is consistent with the report from the January 2020 VA hypertension examination. Per the examination report, while the VA examiner noted that the Veteran's alleged date of onset of the hypertension was 1967, in the diagnosis section the VA examiner put the date of diagnosis as 1990. In other words, after considering the Veteran's lay statements and the other evidence of record, the VA examiner found it more likely than not that the Veteran was first diagnosed with hypertension on or about 1990. After a review of all the evidence, lay and medical, the Board finds that a preponderance of the evidence is against a finding that the Veteran's hypertension began in service or is otherwise related to service, including to the presumed herbicide exposure in service. Service treatment records reflect that the Veteran was not treated for hypertension in service, and for the reasons discussed above, the Board finds that the Veteran was not diagnosed with hypertension until on or about 1990, over 20 years after service separation. Considering the evidence of record, as the Veteran's last period of honorable service ended in February 1967, the credible evidence of record does not show that the currently diagnosed hypertension had its onset during service. The approximately 20 year period between service and the onset of hypertension is one factor that weighs against a finding of service incurrence, including by continuous symptoms since service from which service incurrence would be presumed. See Buchanan, 451 F.3d at 1336 (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical complaint of a claimed disability is one factor to consider as evidence against a claim of service connection). Additional factors weighing against continuous symptomatology since service include the findings of the VA examiner in January 2020, and the Veteran's own contemporaneous lay statements at the time of the October 2010 service connection claim. While the evidence does not reflect that the Veteran suffered a cardiovascular injury or disease during service, the Veteran did service in the Republic of Vietnam, so is presumed to have been exposed to the herbicide Agent Orange. After a review of all the relevant evidence of record, the Board finds that the currently diagnosed hypertension is not due to the presumed in service exposure to the herbicide Agent Orange. VA received a speculative VHA opinion in December 2018. Per the VHA opinion report, a hypertension specialist noted that, while the totality of the medial evidence today suggests a possible association of herbicide exposure and hypertension, the data is not conclusive, and additional studies are necessary. Due to the speculative nature of the December 2018 VHA opinion, a new VA hypertension opinion was obtained in January 2020. Per the VA opinion report, the VA examiner opined it less likely than not that presumed in-service herbicide exposure caused the current hypertension. The VA examiner stated that there was no generally acceptable medical literature that directly linked hypertension to Agent Orange exposure. Subsequently, an addendum VA medical opinion was obtained in July 2020. Per the addendum opinion report, the VA examiner reviewed the December 2018 VHA opinion report and found it speculative in nature. The VA examiner went on to explain that there has been no placebo controlled double blinded study that links any herbicide exposure to hypertension. Further, the VA examiner considered the Committee to Review the Health Effects in Vietnam Veterans of Exposure to Herbicide's report "Veterans and Agent Orange: Update 2012", but found nothing in that report warranted a finding that the Veteran's hypertension was caused by herbicide exposure. In other words, when the current medical literature was considered with the specific facts and circumstances of this case, nothing changed the VA examiner's opinion that it was less likely than not that presumed in-service herbicide exposure caused the Veteran's currently diagnosed hypertension. Although the Veteran has asserted that the currently diagnosed hypertension is related to presumed in-service exposure to herbicides, he is a lay person and, under the facts of this particular case, does not have the requisite medical training or credentials to be able to render a competent opinion regarding this cause of the hypertension. The etiology of the Veteran's hypertension is a complex medical question involving internal disease processes. Thus, while the Veteran is competent to report some hypertension symptoms experienced at any time, there are few observable symptoms of hypertension until hypertension is at a crisis stage, and some symptoms of hypertension such as dizziness or nosebleeds are common symptoms that overlap with symptoms of other disorders, so would require the ability to differentiate such symptoms attributable to hypertension from other common symptoms. For these reasons, under the facts of this case, the Veteran is not competent to opine on whether there is a link between the hypertension and other service connected disabilities and/or exposure to herbicides. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). For these reasons, the Board finds that the weight of the evidence is against direct or presumptive service connection for hypertension under the provisions of 38 C.F.R. §§ 3.303, 3.307, and 3.309. As the preponderance of the evidence is against service connection, the claim must be denied. REASONS FOR REMAND 2. Service Connection for a Skin Disorder Other Than Squamous Cell Carcinoma is Remanded. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. See Stegall, 11 Vet. App. at 271. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran received a VA skin examination in October 2017. At that time, the Veteran was diagnosed with multiple skin disorders, to include squamous cell carcinoma, basal cell carcinoma, actinic keratosis, and blue nevus. Further, private dermatologic treatment records also reflect diagnoses of sebaceous gland hyperplasia, seborrheic keratosis, and intertrigo. Due to the multiple skin diagnoses, in its June 2019 Remand, the Board directed that the Veteran was to be afforded a new VA skin examination, where the VA examiner, after reviewing the private treatment records, was to identify all the skin disorders. After all the Veteran's skin disorders were identified, the VA examiner was to opine as to whether any of the diagnosed skin disorders were related to service, to include presumed in-service herbicide exposure. While the Veteran received a VA skin examination in January 2020, review of the examination report reflects that the VA examiner only diagnosed squamous cell carcinoma. There is no indication from the examination report and/or corresponding opinion that the VA examiner considered the multiple other skin diagnoses found within the October 2017 VA skin examination report or the private dermatological medical records. As it does not appear that the January 2020 VA skin examination and corresponding opinion satisfies the Board's June 2019 remand directives, the Board finds remand for an addendum medical opinion to be warranted. The issue of service connection for a skin disorder is REMANDED for the following action: 1. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning the skin. Upon receipt of the requested information and the appropriate releases, the Agency of Original Jurisdiction (AOJ) should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the disorders, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) 2. Associate with the record all VA treatment records pertaining to the treatment of the Veteran's skin, not already of record, for the period from August 2020. 3. Obtain a VA skin disorder addendum opinion. Examination of the Veteran is not required unless the examiner determines that an examination is necessary to provide a reliable opinion. If an examination is required, a detailed history of relevant symptoms should be obtained from the Veteran. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The VA examiner should provide the following opinions: A) After reviewing the Veteran's VA and private skin care treatment records, the examiner should identify all the Veteran's skin disorders, other than squamous cell carcinoma. If the VA examiner disagrees with any of the diagnoses found within the VA and private treatment records, the VA examiner should provide adequate rationale for his/her finding that a prior diagnosed skin disorder was misdiagnosed. B) For each skin disorder diagnosed, is it at least as likely as not (50 percent or higher degree of probability) that the diagnosed skin disorder was caused by the presumed in service herbicide exposure and/or in service sun exposure? J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.