Citation Nr: 25005186 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 16-55 339 DATE: April 16, 2025 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for hypertensive vascular disease, to include on a secondary basis, is denied. FINDINGS OF FACT 1. Hypertension was not manifested during the Veteran's active duty service or for many years thereafter, nor is it otherwise related to the Veteran's active duty service, to include exposure to herbicide agents. 2. Hypertensive vascular disease was not manifested during the Veteran's active duty service, to include exposure to herbicide agents, nor is it related to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310 2. The criteria for entitlement to service connection for hypertensive vascular disease have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1968 to December 1972. This matter was previously before the Board in January 2019, October 2020, August 2021, June 2022, and January 2024. In the January 2024 decision, the Board granted the Veteran's claims pursuant to the PACT Act but not on a direct basis. Most recently, the Veteran timely appealed to the United States Court of Appeals for Veteran's Claims (Court), and in a November 2024, Order, the Court granted a Joint Motion for Partial Remand (JMPR) vacating that decision and remanding it to the Board. The Veteran's claims are now before the Board again to be readjudicated in accordance with the November 2024 JMPR. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Continuity of symptomatology may also provide a basis for a grant of service connection for those diseases defined as "chronic" by VA. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for certain specified diseases on a presumptive basis if a veteran was exposed to herbicide agents during active service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(b), 3.309(e), if the disability manifested to a degree of 10 percent or more at any time after service. VA presumes exposure to herbicide agents for Veterans that had service on the landmass of the Republic of Vietnam or the inland waterways thereof; or had service in specific units that were stationed at the Demilitarized Zone (DMZ) in the Republic of Korea from April 1, 1968 through August 31, 1971; and for servicemembers who regularly and repeatedly operated, maintained, or served aboard the C-123 aircraft known to have sprayed an herbicide agent during the Vietnam era. 38 C.F.R. § 3.307(a)(iii)-(v). 1. Entitlement to service connection for hypertension The Veteran contends that he developed hypertension as a result of herbicide agents, to include Agent Orange, while stationed at the U-Tapao Royal Thai Air Force Base in Thailand. Service treatment records do not document any evidence of elevated blood pressure readings sufficiently high to require treatment, or to result in a diagnosis of hypertension. There is also no objective evidence that the Veteran was diagnosed with hypertension within one year of service discharge. This evidence weighs against a finding that the Veteran's hypertension was present during service. VA treatment records also show no indication the Veteran needed medical care due to hypertension in the immediate years after his separation from service. The record shows a diagnosis of hypertension since 2004. While not a dispositive factor, the passage of time between discharge from service and the medical documentation of a claimed disability is also a factor that weighs against the claim for service connection. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). In this case, the Veteran has not presented any factors that would explain the gap between service and the post-service diagnosis of hypertension. Furthermore, in a July 2022 VA opinion, the examiner noted that there is no evidence of hypertension in service and the Veteran's blood pressure at separation exam was 106/68. There is also no evidence of hypertension within one year of service and that the first evidence is noted in records in 2004, though the date of onset is not specifically noted. The examiner acknowledged that according to the NAS study in 2018 there was an association of hypertension with herbicide exposure, but explained that "association" did not rise to the level of causation. Additionally, the examiner pointed to what he referred to as a landmark Framingham study, which revealed that vast majority of individuals over the age of 55 would eventually develop hypertension; the examiner concluded all Vietnam era veterans had a 90 percent chance of developing hypertension regardless of Agent Orange exposure. The examiner further stated that the known risk factors of hypertension included age, race, obesity, physical activity, tobacco use, diet, and alcohol use. Therefore, the examiner opined that the Veteran's hypertension was less likely than not due to his military service, including Agent Orange exposure. The Board finds this opinion to be the most probative medical evidence of record as it was supported by sound rationale and corroborated by the record and relevant medical literature. An opinion to the contrary is not of record. The Board emphasizes that prior to the PACT Act, there was no presumption of service connection for hypertension based on herbicide exposure. Nor is that presumption retroactive to any period prior to August 10, 2022. Without such a presumption, service connection for hypertension requires that the evidence support a link between the hypertension and service, including any herbicide exposure. Here, the medical evidence on file does not support such a link. The service treatment records do not document elevated blood pressure readings. The first evidence of hypertension is decades after service. The only medical opinion of record is against the claim as far as direct service connection. As for herbicide exposure, the opinion determined that, considering the Veteran's medical history, the NAS determination of an association between herbicide exposure and hypertension was not sufficient to explain the development of hypertension in the Veteran's case. In other words, correlation (or association) is not causation, and in the Veteran's case there were other factors that better explained the development of hypertension than herbicide exposure. The examiner buttressed the opinion with a study. The Board finds the examiner's opinion to be adequate and supported by the Veteran's medical history. The Board has considered the lay evidence of record. The Board is sympathetic to the Veteran's contentions in support of a relationship to service. The Board further notes that laypersons are competent to describe observable symptoms, such as shortness of breath or heart palpations. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). However, lay persons are not competent to relate hypertension to military service or Agent Orange through a medical nexus as that issue is medically complex and requires specialized medical knowledge. Jandreau, 492 F.3d at 1377 n.4. The fact that the medical community is publishing multiple studies looking for links between herbicide exposure and various maladies, supports the notion that the matter is not amenable to lay opinion. Thus, while the Board has duly considered the lay evidence in support of this claim, it lends more probative weight to the highly probative VA medical opinion evidence in this case, which indicates against nexus to service. Pursuant to the November 2024 JMPR, the Board will address the 2018 NAS update as it was mentioned in the July 2022 VA opinion and the Veteran submitted it as evidence of a nexus. Although the Veteran has cited to the 2018 NAS update as evidence of a nexus between his hypertension and his in-service exposure to herbicide agents, the Board does not find that this evidence is sufficient to place the issue in relative equipoise. In this regard, the Board notes that, in November 2018, the NAS moved hypertension to the category of "sufficient" evidence of an association from its previous classification in the "limited or suggestive" category. The sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and exposure to Agent Orange. See Veterans and Agent Orange: Update 2018. The Board notes that even though the NAS has found that there is "sufficient" evidence of an association between hypertension and exposure to herbicides, this does not provide evidence that this Veteran's hypertension is caused by exposure to herbicides. Evidence suggesting an association is not the same as evidence of causation. Therefore, the Board finds that the July 2022 VA examiner's opinion, which considered the 2018 NAS update as well as the specific facts of the Veteran's case, outweighs the probative value of the 2018 NAS update. In summary, the record establishes that hypertension was not present during the Veteran's active service, nor was it manifest to a compensable degree within one year of separation from active service. Moreover, the record contains no indication that the Veteran's hypertension is causally related to his active service or any incident therein, to include his exposure to herbicide agents. Accordingly, the evidence is persuasively against a grant of service connection for hypertension. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the evidence is persuasively against the Veteran's claim, that doctrine is not applicable, and service connection must be denied. 38 U.S.C. § 5107 (b). 2. Entitlement to service connection for hypertensive vascular disease, to include on a secondary basis The Veteran contends that his heart disorder is the result of his service, to include in-service exposure to herbicide agents. The Veteran's military personnel records reflect his service in the Pacific and at the U-Tapao Royal Thai Air Force Base in Thailand. The Board has first considered whether service connection is warranted on a presumptive basis. However, the clinical evidence of record does not show that the Veteran manifested arteriosclerosis to a degree of 10 percent within the one year following his discharge from service. In this case, the record does not establish that the Veteran has been diagnosed with arteriosclerosis. As such, presumptive service connection is not warranted for arteriosclerosis. 38 U.S.C.§§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Similarly, service connection is not warranted for ischemic heart disease as due to herbicide agent exposure. The clinical evidence of record, to include the July 2022 VA examination report discussed below, fails to show that the Veteran has been diagnosed with ischemic heart disease. As such, presumptive service connection based on herbicide agent exposure is not warranted. 38 C.F.R. §§3.307, 3.309. Service treatment records are negative for any complaints, treatments, and/or diagnoses relating to a heart disorder. A July 2022 VA examiner opined that none of the Veteran's cardiac and vascular conditions were incurred in or related to his service, to include herbicide agent exposure. But rather, the examiner stated that the only germane condition is essential hypertension and resultant hypertensive cardiovascular disease, and that the Veteran's hypertensive cardiovascular disease is secondary to his hypertension. The examiner noted that concentric left ventricular hypertrophy and grade 2 diastolic dysfunction is evidence of his hypertensive heart disease, that the other conditions diagnosed in 2022 are all incidental findings found on the echocardiogram and that none of the conditions are due to or incurred in service, to include herbicide agent exposure. The examiner reasoned that such includes valvular changes, such as mild mitral valve regurgitation and aortic regurgitation, along with aortic sclerosis, which are considered to be age-related changes and/or incidental findings per the medical literature. The examiner noted that the Veteran had not been diagnosed with coronary artery disease/ischemic heart disease. This opinion is highly probative as the examiner reviewed the claims file and provided a well-reasoned and clear rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). This opinion is therefore being afforded great probative weight. The Board notes that an opinion to the contrary is not of record. Based on the evidence above, the Board finds that the competent and credible medical evidence demonstrates that service connection for hypertensive cardiovascular disease is not warranted on either a presumptive or direct basis. Moreover, the Board notes that service connection for hypertension is not warranted on direct basis. Thus, as a matter of law, service connection for hypertensive cardiovascular disease as secondary to hypertension cannot be awarded. See 38 C.F.R. § 3.310. Therefore, service connection for hypertensive cardiovascular disease is not warranted on either a direct or secondary basis. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Clevenger, Gordanna A. 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.