Citation Nr: 22058101 Decision Date: 10/17/22 Archive Date: 10/17/22 DOCKET NO. 22-00 152A DATE: October 17, 2022 ORDER Service connection for hypertension is denied. FINDING OF FACT The Veteran was not exposed to herbicide agents such as Agent Orange during his military service, nor his hypertension is related to his active duty service. CONCLUSION OF LAW The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1116, 1116A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1966 to October 1969. The case is on appeal from a December 2015 rating decision. In a February 2022 decision, the Board remanded the issues of service connection for respiratory and skin disorders. While the case was in remand status, in a July 2022 rating decision, the RO granted service connection for actinic keratosis (skin condition), and asthma (respiratory condition). As the benefits sought have been granted in full, those issues are no longer on appeal. The Board also remanded the present claim for hypertension for the issuance of a statement of the case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). An SOC was issued in March 2022. The Board will accept an April 2022 correspondence as equivalent to a substantive appeal such as to perfect the appeal of the hypertension claim. Additional evidence has been associated with claims file subsequent to the March 2022 SOC. As the evidence is either cumulative or not pertinent to the claim decided herein, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1305(c). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service connection for hypertension. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). For veterans who are presumed to have been exposed to herbicide agents such as Agent Orange, VA has established a presumption of service connection for certain diseases. 38 C.F.R. § 3.307(a)(6), 3.309(e). On August 10, 2022, the President of the United States signed into law the Honoring our PACT Act of 2022 (PACT Act). Significantly, a notable element of the PACT Act is that it establishes hypertension as a presumptive disease for in-service exposure to herbicide agents. See Honoring our PACT Act of 2022, Pub. L. No. 117-168, § 403(d)(2) (2022). The effective and applicability date for the inclusion of hypertension is October 1, 2026. VA is responsible for determining whether the evidence supports the claims or is in approximate balance, with the veteran prevailing in either event, or whether the evidence is persuasively against the claims, in which case the claims are denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, 781-82 (2021). Analysis The Veteran contends that service connection for hypertension is warranted. In support of his claim, he asserts that while serving at Corpus Christi U.S. Naval Base in Corpus Christi, Texas, he was exposed to Agent Orange through helicopters brought back from Vietnam which he alleges were contaminated with the herbicide agent. See April 2015 statement in support of claim. As such, the first question for the Board is whether the Veteran is presumed to have been exposed to herbicide agents such as Agent Orange during his active military service. Service personnel records (SPRs) show that the Veteran enlisted in the U.S. Navy in April 1966. He was assigned at the U.S. Naval training center in San Diego, California. See Orders No. NL19/GJE/RECORDS/1130 dated on April 11, 1966. Upon completion of his training, he was transferred to the U.S. Corpus Christi Naval Base in Corpus Christi, Texas, where he remained from July 1966 to August 1968. In August 1968, he was then transferred to the USS BOXER (LPH4), where he remained until his separation from service in October 1969. See Transfers and Receipts records dated on July 22, 1966, August 27, 1968, and October 10, 1969, respectively. VA laws and regulations provide certain Agent Orange presumptive locations. However, the U.S. Naval Base in Corpus Christi, Texas, is not one of them. See 38 U.S.C. § 1116; see also 38 C.F.R. § 3.307 (a)(6) (for service in the Republic of Vietnam from January 9, 1962, to May 7, 1975; and in, or near the Korean Demilitarized Zone (DMZ) from April 1, 1968, to August 31, 1971); see also 38 U.S.C. § 1116A which incorporated the provisions of the Blue Water Navy Vietnam Veterans Act of 2019 (the Act) (for claims based on exposure to herbicides due to service off the coast of the Republic of Vietnam); and most recently, the Honoring our PACT Act of 2022, Pub. L. No. 117-168, § 403(d)(2) (2022) (establishing, in pertinent part, a presumption of exposure to herbicides agents for service in Thailand, Laos, some locations in Cambodia, Guam or American Samoa, or in the territorial waters of Guam or American Samoa, and Johnston Atoll). Given the Veteran's service in the U.S. Navy aboard the USS BOXER, the RO conducted further development to determine whether the Veteran served off the Coast of Vietnam at any time between August 1968 to October 1969. In a February 12, 2016, Memorandum, the RO made a formal finding of lack of information required to verify exposure to Agent Orange. The formal finding indicates that upon review of "The Navy and Coast Guard ships Associated with Service in Vietnam and Exposure to Herbicide Agents list and Dictionary of American Naval Fighting Ships," there exists no record of Vietnam service for the USS BOXER for the time the Veteran was stationed aboard. See February 12, 2016, Memorandum from VA's Joint Services Records Research Center (JSRRC) Coordinator. In addition, the Board notes that the Veteran has not contended that his alleged exposure occurred while serving aboard the USS BOXER, but through the Army helicopters brought to the U.S. Naval base in Corpus Christi, Texas while he served at that location. See April 2015 statement in support of claim. The Veteran has not asserted, at any time, that he served in Vietnam, or in its territorial waters, or that he served in Thailand, Laos, Cambodia, the Korean DMZ, Guam, American Samoa, or its territorial waters, at Johnston Atoll, or a ship that called at Johnston Atoll. See also February 18, 2016 VA Agent Orange Registry (The Veteran reported that he was not in Vietnam or Korea, nor he was involved in handling Agent Orange. He reported that he believes he was exposed to Agent Orange through Army helicopters coming back from Vietnam). In light of the above, the Board finds that the presumptive provisions discussed above do not apply to the facts of this case. Notwithstanding, this does not preclude the Veteran from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board notes that the Veteran has a current diagnosis of benign essential hypertension. See VA treatment records dated from March 2015 to February 2022. Thus, the current disability element of the claim has been established. Service treatment records (STRs), however, do not account for complains or treatment sought or received for high blood pressure or hypertension during service. In fact, the Veteran's STRs show that the Veteran's blood pressure remained normal throughout his service. See, i.e., November 30, 1965, notes (blood pressure reading recorded as 124/88); January 11, 1967, notes (blood pressure reading recorded as 124/70); January 16, 1967, notes (blood pressure reading recorded as 130/70); and October 7, 1969, separation medical exam (blood pressure reading recorded as 118/74). Post-service treatment records only account for treatment received from March 2015 and forward, and consist of VA treatment records dated from March 2015 to February 2022, and private treatment records from Christus St. Michael Health System and Christus Physician Group dated from March 3, 2015, to January 21, 2016. VA treatment records reflect that the Veteran established VA care for the first time in March 2015. The Veteran reported a history of benign essential hypertension. See March 20, 2015 progress notes. In October 2015, his hypertension was described as uncontrolled. See October 6, 2015, progress notes. The Veteran was then placed on medication to control his hypertension. See October 27, 2015, progress notes. The Veteran has continued under hypertension treatment ever since. However, the record does not make any reference as to the onset of the claimed disability. Private treatment records also show that while hypertensive disorder was included in the Veteran's problems list, as of March 2015, the Veteran did not appear to be under a prescription for hypertension. See March 5, 2015, medication history (only for respiratory disorders and allergy). A January 2016 progress note from Christus Physician Group shows that the Veteran was prescribed medication for his hypertension. See January 21, 2016, progress notes. With respect to consideration of service connection on a direct basis, upon review of medical records and the Veteran's statements, the Board finds that the Veteran's hypertension did not have its onset during service and is not causally related to service. As previously noted, the Veteran has specifically attributed his hypertension to his belief that he was exposed to herbicide agents during service, a matter that the Board has found is not the case here. Nevertheless, the Board has dutifully considered whether service connection can be warranted on a direct basis. However, the evidence of record is against a finding that his hypertension had its onset during, or is otherwise related to his military service. In that regard, while there is no specificity as to the onset of the claimed disability, the medical evidence of record persuasively suggests that the Veteran's hypertension had its onset at some point in 2015. Moreover, the Veteran has not contended otherwise nor has submitted medical evidence for treatment received prior to March 2015. Additionally, the Veteran has not asserted at any time during the pendency of this appeal that his disability became manifest within one year from separation from service. See 38 C.F.R. § 3.307(a)(3). The Board is aware that in the present case the Veteran has not been afforded a VA examination. In disability compensation claims, [VA] must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for [VA] to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). As to the second McLendon element, STRs are completely silent for an in-service event, injury, or disease. This is supported by STRs reflecting that multiple blood pressure readings during service were normal, to include at separation from service in October 1969. Moreover, aside from Agent Orange exposure, the Veteran has offered no alternative theory of entitlement in support of this claim. Accordingly, a VA examination is not warranted as the evidence does not establish an in-service event and, therefore, remand for a VA examination is not warranted for this claim. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan, 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.