HYPERTENSION

Summary

The Veteran, who served from June 1967 to May 1970, appeals the denial of service connection for hypertension and the remand of erectile dysfunction. The Veteran claimed hypertension was due to herbicide exposure or secondary to his service-connected type II diabetes mellitus. The Board denied direct service connection for hypertension, noting it manifested 32 years after service and was not linked to herbicide exposure by the VA examiner, who found morbid obesity a more likely cause. The Board also denied secondary service connection for hypertension due to diabetes, as the VA examiner opined it was less likely than not related, predating the diabetes diagnosis and stable with no medication changes. The Board found the Veteran's lay statement about his doctor's opinion speculative and not probative. The Board remanded the claim for erectile dysfunction, as the prior VA examiner's opinion did not comply with the Board's directive to address proximate causation to service-connected disabilities or medications.

Rationale

Hypertension manifested 32 years after service.; VA examiner opined less likely than not related to service/herbicide exposure.; Morbid obesity deemed more likely cause than herbicide exposure.; No nexus opinion favoring Veteran's claim.; Hypertension predates diabetes diagnosis and is stable.

Full Decision Text

Citation Nr: 21016985
Decision Date: 03/24/21	Archive Date: 03/24/21

DOCKET NO. 09-30 923
DATE: March 24, 2021

ORDER

Entitlement to service connection for hypertension is denied.

REMANDED

Entitlement to service connection for erectile dysfunction is remanded.

FINDING OF FACT

The Veteran’s claimed for hypertension condition is not secondary to service-connected type II diabetes mellitus and is not otherwise related to an in-service injury or disease, to include as due to herbicide exposure.

CONCLUSION OF LAW

The criteria for service connection for hypertension due to service, to include herbicide exposure, or service-connected type II diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active duty service from June 1967 to May 1970.

This matter comes before the Board of Veterans’ Appeals (Board) from a December 2008 and October 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO).

The Board notes that a hearing was held in December 2016 before the undersigned Veterans Law Judge. A transcript of that hearing is of record.

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.  The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (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.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309.  Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran’s claimed for hypertension condition is considered a chronic disease under 38 C.F.R. § 3.309 (a), and therefore presumptive service connection will be considered.

If a veteran was exposed to an herbicide agent (to include Agent Orange) during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type II diabetes, Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e).

Service connection may also 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
 the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e).

Service connection may also 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).

Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2016). 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).

1. Entitlement to service connection for hypertension

The Veteran contends that his claimed for hypertension condition is due to herbicide exposure during service, or, in the alternative, is proximately due to and/or aggravated by his service-connected type II diabetes mellitus disability. See December 2016 Board hearing transcript; August 2009 VA Form 9; June 2016 Statement of Representative. 

Presumptive Service Connection...

Here, the Board notes that the most probative evidence of record indicates that the Veteran’s hypertension condition did not manifest until many years after his discharge from service, approximately 32 years following service. See November 2020 addendum medical opinion; May 2017 VA examination report. Nor has the Veteran alleged otherwise, and therefore the Board finds that the preponderance of the evidence weighs against entitlement to service connection on a presumptive basis, as the record does reveal chronic symptoms of hypertension in service, continuous symptoms since service, or compensable manifestations within one year of separation from service. Id.; see 38 U.S.C. § 1112(a); 38 C.F.R. §§ 3.307, 3.309(a). 

Additionally, hypertension is not among the disorders entitled to presumptive service connection as due to herbicide exposure. 39 C.F.R. § 3.309(e), Note 3. Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 5(1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994).

Direct Service Connection...

As to the first element of Shedden, for service connection the Veteran must show a current disability. Per the May 2017 VA examination report, the Veteran has a current diagnosis of hypertension, and therefore the Board finds that the first Shedden element has been met. 

As to the second element of Shedden, for service connection the Veteran must show an in-service incurrence or aggravation of a disease or injury. Here, the Board notes that herbicide exposure has been conceded as the Veteran served in the Republic of Vietnam during the regulatory timeframe for the presumption to apply. See 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii); DD Form 214. As such, the Veteran's claim meets the second Shedden element for service connection.

As to the last element of Shedden, for service connection the Veteran must show a causal relationship between the current disability and the in-service disease or injury. The Board notes that there are no medical opinions of record weighing in favor of the Veteran’s claim. Upon remand, the November 2020 VA examiner opined that the Veteran’s currently diagnosed hypertension condition less likely than not incurred during service or is due to conceded herbicide exposure, as the Veteran’s condition did not onset until approximately 32 years following his separation from service, and his morbid obesity is a far more likely proximate cause; the VA examiner deemed herbicide exposure to be a etiologically untenable cause of the Veteran’s hypertension condition. The Board affords the previous October 2015 VA medical opinion no probative value on the issue of nexus as it applied the wrong legal standard. See April 2017 Board remand. 

The
 there are no medical opinions of record weighing in favor of the Veteran’s claim. Upon remand, the November 2020 VA examiner opined that the Veteran’s currently diagnosed hypertension condition less likely than not incurred during service or is due to conceded herbicide exposure, as the Veteran’s condition did not onset until approximately 32 years following his separation from service, and his morbid obesity is a far more likely proximate cause; the VA examiner deemed herbicide exposure to be a etiologically untenable cause of the Veteran’s hypertension condition. The Board affords the previous October 2015 VA medical opinion no probative value on the issue of nexus as it applied the wrong legal standard. See April 2017 Board remand. 

The Board acknowledges the Veteran’s lay statements that his VA doctor thought that his hypertension could be related to herbicide exposure. See December 2016 Board hearing transcript. Here, the Board finds said statement(s) to be speculative in nature and therefore of no probative value. See, Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship); see also, Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative). Additionally, as the issue of a medical nexus between hypertension and herbicide exposure is a medically complex question, the Board does not find the Veteran competent to provide a nexus opinion here. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As the preponderance of the evidence weighs against the claim, the reasonable doubt doctrine is not for application, and service connection for hypertension based on a direct theory of entitlement must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Secondary Service Connection...

As to the first element of secondary service connection, the Veteran must show a current disability.  As previously indicated, the Veteran has a current diagnosis of hypertension, and therefore his claim meets the first element of secondary service connection. See May 2017 VA examination report.

As to the second element of secondary service connection, the Veteran must show a service-connected disability. The Veteran is currently service-connected for diabetes mellitus type II, and therefore his claim meets the second element of secondary service connection. See March 2004 RD. 

As to the last element of secondary service connection, the Veteran must show a causal relationship between the currently diagnosed condition and the service-connected disability. The Board notes that there are no medical opinions of record weighing in favor of the Veteran’s claim. Per the May 2017 VA examination report, the VA examiner opined that it is less likely than not that the Veteran’s hypertension is caused or aggravated by his diabetes disability, as his hypertension pre-dates the diagnosis of his diabetes. See also November 2020 addendum medical opinion (associating the Veteran’s hypertension with non-service-connected morbid obesity). On the issue of aggravation, the VA examiner noted that the Veteran’s hypertension has been stable for years with no changes in blood pressure or medications. Id.

The Board assigns no probative value to the October 2015 VA medical opinion as it applied the wrong legal standard. See April 2017 Board remand. 

As the issue of a medical nexus between hypertension and diabetes is a medically complex question, the Board does not find the Veteran competent to provide a nexus opinion here. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds that the preponderance of the evidence weighs against the claim, as the most probative evidence of record does not associate the Veteran’s hypertension condition with his service-connected diabetes disability, and therefore the reasonable doubt doctrine is not for application, and service connection for hypertension based on a secondary theory of entitlement must be denied. See May 2017 VA examination report; November 2020 addendum medical opinion; 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

REASONS FOR REMAND

1. Entitlement to service connection for erectile dysfunction is remanded.

Upon remanding the Veteran’s claim in October 2020, the November 2020 VA
 record does not associate the Veteran’s hypertension condition with his service-connected diabetes disability, and therefore the reasonable doubt doctrine is not for application, and service connection for hypertension based on a secondary theory of entitlement must be denied. See May 2017 VA examination report; November 2020 addendum medical opinion; 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

REASONS FOR REMAND

1. Entitlement to service connection for erectile dysfunction is remanded.

Upon remanding the Veteran’s claim in October 2020, the November 2020 VA examiner was requested by the RO to opine as to whether the Veteran’s claimed for erectile dysfunction condition is at least as likely as not (50 percent probability or greater) due to his conceded Agent Orange exposure; however, this is not the opinion that the Board requested in its October 2020 remand, and therefore there has not yet been substantial compliance with its directive of obtaining a medical opinion addressing whether the Veteran’s claimed E.D. condition is proximately due to and/or aggravated by any of his service-connected disabilities, to include medications prescribed for them. Therefore, unfortunately, another remand is required here. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

The matters are REMANDED for the following action:

1. Associate with the Veteran’s claims file any outstanding VA treatment records since November 2020. 

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2. Obtain an addendum medical opinion for the Veteran’s claimed for E.D. condition. Upon review of the claims file, to include this remand, opine as to the following:

Is it at least as likely as not (50 percent probability or greater) that the Veteran’s claimed for E.D. condition is proximately due to, and/or aggravated beyond its natural progression, by any of his service-connected disabilities, to include any medications he is prescribed and takes for the them?

 

 

K. J. ALIBRANDO

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	S.R. Fey, 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.