Citation Nr: 22010592 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 11-27 249 DATE: February 24, 2022 ORDER Entitlement to service connection for hypertension is denied. FINDING OF FACT The Veteran's hypertension is neither related to an in-service injury, event, or disease, to include presumed exposure to herbicide agents; nor is it proximately due to or aggravated by the service-connected diabetes mellitus, type II. CONCLUSION OF LAW The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1968 to March 1971. His active service included service in the Republic of Vietnam from August 1970 to March 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO or AOJ). The Veteran testified before the undersigned Veterans Law Judge in an October 2012 Video Conference Board hearing. A transcript of that hearing is associated with the claims file. The Board issued a decision in August 2016 addressing the above stated issue. In June 2017, the United States Court of Appeals for Veterans Claims (the "Court"), granted a May 2017 Joint Motion for Partial Remand (JMPR) vacating that portion of the Board's decision that denied the Veteran's claim for service connection for hypertension. Specifically, in the parties' May 2017 JMPR, inadequacies in the prior VA examinations of record were noted to include 1) failure to consider a report entitled Veterans and Agent Orange: Update 2014, published by the National Academy of Sciences (NAS) Institute of Medicine (IOM); and 2) failure to adequately address the Veteran's contention regarding a relationship between his hypertension and service-connected diabetes mellitus, type II, to include discussion of a March 2012 VA treatment record indicating evidence of acute renal failure. This case was most recently remanded by the Board in August 2021 for additional development to include obtaining addendum opinions in accordance with the parties' May 2017 JMPR. It has now returned to the Board for further appellate action. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's representative has argued that the Veteran's claim for service connection for hypertension encompasses congestive heart failure and coronary artery disease. See January 2022 Appellate Brief. The Board is cognizant of the holding in Grimes v. McDonough, No. 18-1017, 2021 U.S. App. Vet. Claims LEXIS 742 (holding a claim for service connection may encompass a related condition). However, in this case the Veteran submitted a claim specifically for high blood pressure, which is a distinct disorder from congestive heart failure and coronary artery disease and results in difficulties separate from those posed by congestive heart failure and coronary artery disease. Thus, claims based on separate and distinctly diagnosed diseases or injuries must be considered separate and distinct claims. See Boggs v. Peake, 520 F.3d. 1330, 1336 (Fed. Cir. 2008). 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, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Under section 3.310 (a) of VA regulations, service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Applicable regulations provide that those diseases listed in 38 C.F.R. § 3.309 (e) which are associated with exposure to certain herbicide agents shall be considered to have been incurred in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.309 (e). VA has determined that there is no positive association between exposure to herbicide agents and any other condition for which it has not specifically been determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also 61 Fed. Reg. 57586-89 (1996). Hypertension is not a disease for which service connection can be granted presumptively on the basis of exposure to herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a) (6), 3.309 (e). However, the Veteran may still be entitled to service connection for a non-presumptive disease on a facts-found basis. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994); Polovick v. Shinseki, 23 Vet. App. 48, 52-53 (2009). Additionally, service connection will be presumed for certain chronic diseases, including hypertension, if manifest to a compensable degree within one year after discharge from active service. See 38 C.F.R. §§ 3.307, 3.309 (a). A Veteran may also establish service connection for hypertension through continuity of symptomology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Entitlement to Service Connection for Hypertension The Veteran contends that he has hypertension due to his presumed in-service exposure to herbicide agents or is otherwise related to an in-service injury, event, or disease. Alternatively, he contends that his hypertension is related to his service-connected diabetes mellitus, type II. Direct Service Connection Regarding direct service connection, the first Shedden element is satisfied in that during the pendency of the appeal, a January 2015 VA examiner indicated a current diagnosis of hypertension. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The second Shedden element is also satisfied as in-service exposure to Agent Orange or other herbicide agents during the Veteran's service in Vietnam is presumed. See August 2016 Board decision. Turning to the third Shedden element, the Board finds that the persuasive evidence weighs against the existence of a nexus between the Veteran's hypertension and the presumed in-service exposure to herbicide agents, or is otherwise related to an in-service injury, event, or disease. In this regard, an addendum VA medical opinion was obtained in September 2021 to address the recent change in status of hypertension in the IOM 2018 study, entitled Veterans and Agent Orange, Update 11. The VA examiner noted, initially, there is no evidence of hypertension while in service and that the Veteran's blood pressure was noted at the separation examination to be 120/80. The examiner further indicated that the Veteran's hypertension was not diagnosed until in or around 2007. The examiner, therefore, opined that it is less likely than not that the Veteran's hypertension had its onset in service in service. Addressing the Veteran's presumed in-service exposure to herbicide agents (Agent Orange), the examiner stated that Agent Orange exposure has not been shown to cause hypertension in the current, widely accepted, peer-reviewed literature, to include the 2018 NAS study which suggested a possible association but did not establish cause. The examiner then identified risk factors for the development of hypertension, to include age and chewing tobacco. The examiner pointed to an endocrinology consultation record dated April 2014 noting the Veteran chews tobacco, and noting the Veteran had little knowledge of his family medical history. The examiner, therefore, concluded that the Veteran's hypertension was more likely due to risk factors to include age as well as a history of chewing tobacco. The examiner also indicated that the unknown family genetics likely played a role as well. Consistent with this, the Veteran's service treatment records indicate that a reading of 128/80 was recorded in April 1968, at induction into service. During service, an August 1970 treatment record notes the Veteran's blood pressure was recorded as 120/80 and as 110/80 when standing. A reading of 120/80 was noted on the Veteran's March 1971 separation Medical Examination. During his October 2012 Board hearing, the Veteran testified that he was first diagnosed with high blood pressure "two, three, or four years ago." Additionally, the Veteran's post-service VA treatment records note a history of smoking cigarettes for one year and chewing a quarter pouch of tobacco per day for approximately 19 years. See May 2016 VA treatment record. The September 2021 addendum VA medical opinion is probative and persuasive because it was based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In rendering this determination, the Board acknowledges the Veteran, by way of his representative, argues that the September 2021 addendum VA medical opinion is outweighed by the 2018 NAS study. He asserts that the biochemical mechanisms presented in the 2018 NAS study "holds more probative value than the mere speculation of the Veteran's family genetics." See January 2022 Appellate Brief. As a result, the Board has considered whether the probative value of the VA opinion evidence is diminished or should otherwise be rendered inadequate. The Board finds it should not, and the opinion maintains its probative value for the reasons stated below. Wise v. Shinseki, 26 Vet. App. 517 (2014) and McCray v. Wilkie, 31 Vet. App. 243 (2019). The Court has held that in evaluating the evidence, while the Board can consider the extent a scientific theory is accepted in the scientific community, it cannot demand a level of acceptance in the scientific community greater than the level of proof required by the benefit of the doubt rule. See Wise, 26 Vet. App. at 531-532. Here, the September 2021 VA examiner found that Agent Orange exposure has not been shown to cause hypertension in the current, widely accepted, peer-reviewed literature, to include within the 2018 NAS study. The examiner appears to suggest that the persuasive medical evidence cannot lead to a conclusion that the Veteran's presumed exposure to herbicide agents is linked to his hypertension. The examiner did not stop there. The September 2021 VA examiner went on to identify relevant risk factors that lead to the development of hypertension, to include age and tobacco chewing, that apply to the Veteran's personal circumstances. The examiner also noted "unknown family genetics" that "likely played a role." When read as a whole, the examiner also considered relevant risk factors, such as age and a history of tobacco chewing, that are supported by the evidence of record, that apply to the Veteran's personal circumstances leading to the development of his hypertension. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). Thus, the Board finds the VA examiner only partially relied on peer-reviewed literature, to include the 2018 NAS study, and/or "unknown family genetics" in rendering the opinion. Of particular significance here is the examiner's reference to an April 2014 endocrinology consultation record noting the Veteran chews tobacco. The evidence of record also includes a May 2016 VA treatment record similarly noting a history of smoking cigarettes for one year and chewing a quarter pouch of tobacco per day for approximately 19 years. Thus, the VA examiner considered relevant risk factors, such as age and a history of tobacco chewing, that apply to the Veteran's personal circumstances to explain why a nexus between the Veteran's exposure to Agent Orange and his hypertension was unlikely. McCray, 31 Vet. App. at 257. The record does not contain any conflicting medical opinions regarding whether the Veteran's hypertension is related to an injury, event, or disease in-service including the presumed herbicide agent exposure therein. Additionally, the Veteran has not submitted other studies or other medical evidence to support the proposition of a relationship between hypertension and presumed herbicide agent exposure, or otherwise call into question the examiner's overall opinion. See 38 U.S.C. § 5107 (a). Given the above, the Board finds that the September 2021 addendum VA medical opinion is not indicating a level of medical certainty inconsistent with VA's burden of proof. See Wise, 26 Vet. App. at 527; Polovick, 23 Vet. App. at 52-53. The Board declines to discount the whole of the September 2021 addendum VA medical opinion on the basis of the 2018 NAS study, or the examiner's reference to "unknown family genetics." The Board has also considered the Veteran's assertion that there is a relationship between hypertension and his military service, to include exposure to herbicide agents. Although the Veteran is competent to report his symptoms, a determination as to whether hypertension is related to service, to include presumed exposure to herbicide agents, is a complex matter requiring related medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues). As the Veteran has no known or reported medical expertise, he is not legally competent to establish a nexus between this disability and service, to include presumed exposure to herbicide agents. Consequently, the Board gives more probative weight to the competent evidence, i.e., the September 2021 addendum VA medical opinion which contains a clear conclusion with supporting data from the record connected by a reasoned medical explanation. Nieves-Rodriguez, 22 Vet. App. at 304. Because the persuasive evidence is against the existence of a nexus between hypertension and the presumed in-service exposure to herbicide agents, or is otherwise related to an in-service injury, event, or disease, entitlement to service connection on a direct basis must be denied. Secondary Service Connection The Veteran has a current diagnosis of hypertension. The Veteran is also service-connected for diabetes mellitus, type II, see November 2011 rating decision. Such sufficiently satisfies the first two Wallin elements. Turning to the third Wallin element, the persuasive evidence weighs against the existence of a nexus between hypertension and the Veteran's service-connected diabetes mellitus, type II. Tn April 2021 addendum VA medical opinion was obtained to address the Veteran's asserted relationship between his hypertension and the service-connected diabetes mellitus, type II. Additionally, the examiner was asked to discuss the clinical significance, if any, of the March 2012 VA treatment record noting acute kidney failure. The April 2021 VA examiner provided a negative opinion finding no relationship between the Veteran's hypertension and the service-connected diabetes mellitus, type II. The VA examiner stated the Veteran's hypertension was diagnosed two to four years before he was diagnosed with diabetes mellitus in December 2009. The examiner found there was no objective evidence existing in the Veteran's currently available submitted medical records supporting an official diagnosis of diabetes mellitus, type II before the hypertension's official date of diagnosis. Addressing an August 2008 dermatology notation suggesting an earlier onset of diabetes mellitus, type II, the examiner stated that such was not "a medical diagnosis" of diabetes mellitus, and that even if such represented a diagnostic date of August 2008 for diabetes mellitus, type II, it is still after the Veteran's diagnosed hypertension which had been diagnosed and treated earlier in 2005/2006. The examiner also found that the "overwhelming evidence" existing in the medical records shows the Veteran no longer has an active hypertension diagnosis. Consideration was given to a June 2020 VA treatment record indicating "hypertension" in the assessment. However, the examiner stated that the physician's failure to address hypertension in the plan/treatment, supported the examiner's opinion that the Veteran "did not have hypertension anymore." Addressing the aggravation prong of secondary service connection, in a June 2021 addendum VA medical opinion, the examiner opined the Veteran's hypertension was less likely than not aggravated because it no longer exists. With respect March 2012 VA treatment record indicating acute renal failure, the VA examiner noted the Veteran had suffered two acute renal injuries, with one overly classified as Acute Renal Failure, in March 2012, and a second in September 2018. The examiner found, however, that neither was caused by hypertension or the service-connected diabetes mellitus, type II. The examiner explained that on both occasions, the Veteran's renal failure was due to dehydration and that the second injury might have also been due to a "brewing pneumonia at admission time that was blossoming and diagnosed during his hospitalization." The examiner opined that "one can easily make an argument" that the Veteran's chronic kidney disease stage 3b was at least as likely as not caused by five risk factors applicable to the Veteran, to include diabetes mellitus, type II, hypertension, cardiovascular disease, obesity, and age; or kidney toxic medications that he chronically took for non-service-connected comorbidities. Consideration has been given to the Veteran's assertion that his hypertension is proximately due to, or aggravated by, the service-connected diabetes mellitus, type II. However, his testimony and statements are not competent evidence of its' relationship to the service-connected diabetes mellitus, type II. As noted above, the etiology of hypertension is medically complex and requires medical knowledge that the Veteran does not possess based on the evidence of record. See Jandreau, 492 F.3d at 1377 & n.4. Consequently, as to the issue of secondary service connection, the Board affords the opinions of the April 2021 and June 2021 VA examiners, who possess medical training and provided a rationale for the opinions proffered, greater value than the Veteran's opinion. Presumptive Service Connection Hypertension can also be service connected on a presumptive basis if it manifested with one year after the Veteran's active service. 38 U.S.C. §§ 1110, 1112 (a) (1), 1113; 38 C.F.R. §§ 3.307 (a) (3), 3.309 (a). However, the record does not include treatment records diagnosing the Veteran's hypertension within one year of his separation from active service. The earliest diagnosis reported in treatment records was in July 2007, more than three decades after the expiration of the one-year presumptive period for service connection that applies to hypertension. See 38 C.F.R. § 3.307 (a) (3). Thus, entitlement to service connection is not warranted on a presumptive basis. As noted above, a Veteran may also establish service connection for hypertension through continuity of symptomology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker, 708 F.3d at 1338. However, again, the earliest diagnosis reported in the Veteran's post-service treatment records is July 2007, or 36 years after the Veteran's separation from service. Such is consistent with the Veteran's October 2012 Board hearing, during which the Veteran testified that he was first diagnosed with high blood pressure "two, three, or four years ago." The Veteran's testimony and statements also do not describe any symptoms associated with high blood pressure or hypertension upon his separation form active service that continued thereafter. Thus, the evidence does not show a continuity of symptomatology. See 38 C.F.R. § 3.303 (b). In light of the foregoing, the Board concludes that the persuasive evidence is against the claim. The benefit of the doubt doctrine does not apply. The Veteran's claim of entitlement to service connection for hypertension, on a direct basis, to include as due to presumed in-service exposure to herbicide agents, or as secondary to the service-connected diabetes mellitus type II, is denied. See 38 U.S.C. § 5107, 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.