Citation Nr: 23041999 Decision Date: 08/01/23 Archive Date: 08/01/23 DOCKET NO. 16-11 744 DATE: August 1, 2023 ORDER Service connection for hypertension pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act) is granted. Service connection for hypertension on a direct basis is denied. FINDINGS OF FACT 1. The Veteran's hypertension is due to his presumed exposure to herbicide agents incurred during his period of service in the Republic of Vietnam (RVN) during the Vietnam era. 2. The Veteran's hypertension is not attributable to incident or event of his period of service and was not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria to establish service connection for hypertension pursuant to the PACT Act have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, Honoring our PACT Act of 2022 Pub. L. 117-168. 2. The criteria to establish service connection for hypertension on a direct basis have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to October 1967, including service in the Republic of Vietnam (RVN). This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In October 2018, the Board remanded the appeal for further development of the record. Specifically, the Board instructed the AOJ to schedule the Veteran for VA examination to determine the nature and etiology of his claimed hypertension. The Veteran received a responsive examination in September 2019. The requested development has been completed and the case has been returned for appellate disposition. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a virtual video-conference hearing in March 2023. A transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 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). Establishing service connection generally requires (1) evidence of a current disability; (2) 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); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including hypertension, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted, hypertension is a chronic disease. 38 U.S.C. § 1101. Therefore, section 3.303(b) is potentially applicable. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Because the Veteran had active service in the RVN during the Vietnam Era (i.e., the period beginning on January 9, 1962, and ending on May 7, 1975), he is presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. If a veteran was exposed to a herbicide agent (including Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and early-onset peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1112; 38 C.F.R. § 3.307, 3.309(e). Hypertension is among the enumerated diseases. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e), 3.313, Honoring our PACT Act of 2022 Pub. L. 117-168. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). Service connection is also warranted 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). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b); see also Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). (CONTINUED ON THE NEXT PAGE) 1. Entitlement to service connection for hypertension pursuant to the PACT Act On August 10, 2022, the President signed legislation adding hypertension as a disease presumptively associated with herbicide exposure. See Honoring our PACT Act of 2022, Pub. L. 117-168, Section 404(c). This amendment shall apply on the date of enactment to Veteran's capable of demonstrating sufficient cause (or if terminally ill, homeless, under extreme financial hardship, or more than 85 years old), and on October 1, 2026, to all others. On October 3, 2022, however, VA's Secretary released an Executive Decision Memorandum effectively designating all claims based on presumptions created by the PACT Act as "capable of demonstrating other sufficient cause," which will allow for payment of benefits prior to the applicability dates set forth in the Act. The Veteran's service personnel records show that he had service in the RVN from October 1966 to October 1967, and he is presumed to have been exposed to herbicide agents. A May 2008 private treatment record documents diagnosis of mild pulmonary hypertension. October 2010, November 2010, January 2011 VA treatment records, and December 2011 and June 2014 private treatment records document diagnosis of essential hypertension. The September 2019 VA hypertension examination report documents diagnosis of hypertension. Thus, the record also shows that he has a current diagnosis of hypertension. Accordingly, the Board finds that service connection for hypertension is warranted on a presumptive basis pursuant to the PACT Act. Service connection for hypertension is granted on a presumptive basis only. 2. Entitlement to service connection for hypertension on a direct basis The November 1965 pre-induction examination documents that the Veteran's blood pressure reading was 120/82. The October 1967 separation examination does not document the Veteran's blood pressure reading. After service, a May 2008 private treatment record documents diagnosis of mild pulmonary hypertension. October 2010, November 2010, January 2011 VA treatment records, and December 2011 and June 2014 private treatment records document diagnosis of essential hypertension. A September 2018 hypertension disability benefits questionnaire (DBQ) reflects that after conferring with the Veteran's cardiologist, it was determined that the Veteran did not meet the blood pressure requirements every time. The September 2019 VA hypertension examination report documents diagnosis of hypertension. The Veteran alleged that his hypertension began in the 1970s. Reported initial symptoms of his hypertension included sweating, light headedness, and headaches. Current symptoms include high heart rate, sweats, chest pain on exertion shortness of breath, and headaches. The physician opined that the hypertension was less likely than not incurred in or caused by an in-service injury, event, or illness. The physician explained that the Veteran's blood pressure reading was 120/82 at pre-induction and there was no information between separation from service in 1967 and the first diagnosis of hypertension in 2008 to support a nexus for service connection. The examiner concluded that the Veteran has hypertension that was well controlled with medication but could not opine that the hypertension was incurred during service. The physician also opined that the Veteran's hypertension was less likely than not proximately due to or a result of the Veteran's service-connected ischemic heart disease (IHD). The physician explained that there was no established evidence that IHD causes hypertension. The physician noted that in most cases, the cause of hypertension was unknown. This was called primary hypertension. In a lesser percentage of cases, the cause of hypertension was known and was called secondary hypertension. The physician noted that an article from the Mayo clinic showed causes of hypertension included obstructive sleep apnea (OSA), kidney problems, certain drugs, certain medications, and certain endocrine conditions. However, IHD did not cause hypertension. Rather, it was well established that hypertension was a cause of IHD and not a result of IHD. The physician concluded that the Veteran's hypertension was less likely than not proximately due to or the result of his IHD. In addition, the physician opined that the Veteran's hypertension was less likely aggravated beyond its natural progression by his service-connected IHD. The physician explained that there was no established evidence that IHD aggravates hypertension. Hypertension may be aggravated by OSA, kidney problems, certain drugs, certain medications, and certain endocrine conditions and it was well established that hypertension aggravates IHD, not vice versa (i.e., IHD aggravates hypertension). Though the Veteran has hypertension, the preponderance of the evidence is against a finding of a linkage between the onset of the hypertension and his military service. The Board has considered his contentions as to the cause of the disorder, but the Veteran is not medically trained. Rather, the competent evidence shows that the Veteran's hypertension onset many years after his discharge from service and was unrelated to any disease or event incurred during his period of service. Moreover, the Veteran's hypertension is not caused or aggravated by his service connected IHD. Rather, hypertension causes or aggravates IHD. (See September 2019 VA examination reports). In short, there has been no evidence submitted indicating hypertension had onset due to event or incident incurred in service or secondary to a service-connected disability. These conclusions are probative as they are based on facts presented by both the service treatment records and the assertions made by the Veteran at the time of the VA examinations. There is also no competent or credible evidence or opinion that suggests that there exists a medical relationship, or nexus, between any current hypertension and a period of the Veteran's service or a service-connected disability. Additionally, there is no evidence of hypertension in service. To determine that a chronic disease was shown in service, the disease identity must be established. 38 C.F.R. § 3.303 (b); Walker, 708 F.3d at 1339. No examiner in service, or since, has established chronicity or an underlying chronic disease process in service. In sum, characteristic manifestations sufficient to identify the disease (hypertension) entity were not noted. Further, there is no demonstration of continuity of symptomatology or evidence of hypertension within one year of separation from service. Thus, service connection cannot be awarded on this presumptive basis. 38 U.S.C. § 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. § 3.303 (b), 3.307, 3.309. The Veteran is not competent to link any claimed hypertension disability to a period of service or a service-connected disability (IHD). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when 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); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service-connected mental disorder and drowning which caused Veteran's death). The Veteran is not competent to link his current hypertension disability to service or a service-connected disability and the claim, on a direct basis, is denied. The evidence is not in approximate balance between that favoring the claim and against the claim. There is no reasonable doubt, and the claim is denied on a direct basis. Lynch v. McDonough, 999 F.3rd 1391 (2021). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Jackson The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.