Citation Nr: 1802559 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 11-01 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for hypertension to include as due to exposure to herbicide agents. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to September 1969, including service in the Republic of Vietnam. Awards include the Purple Heart. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in September 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In September 2015, the Board remanded this matter to the agency of original jurisdiction (AOJ) for further development. After accomplishing the requested action to the extent possible, the AOJ continued the denial of the claim (as reflected in the January 2016 supplemental statement of the case (SSOC)) and returned this matter to the Board for further appellate consideration. In September 2016, the Board denied the Veteran's service connection claim for hypertension. The Veteran appealed the Board's September 2016 decision denying the Veteran's service connection claim for hypertension to the United States Court of Appeals for Veterans Claims (Court). In May 2017, the Veteran's attorney and a representative of the VA Office of General Counsel, on behalf of the Secretary, filed a Joint Motion for Remand (Joint Motion). In a May 2017 Order, the Court granted the motion, vacated the Board's September 2016 decision that denied service connection for hypertension, and remanded the matter to the Board for action consistent with the Joint Motion. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam while on active duty; therefore, exposure to an herbicide agent is presumed. 2. The evidence is at least evenly balanced as to whether the Veteran's current diagnosis of hypertension is related to exposure to herbicide agents during active military service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for establishing entitlement to service connection for hypertension are met. 38 U.S.C. § 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Procedural Considerations The United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Criteria and Analysis The Veteran contends that his current hypertension disability is caused by or related to active military service. Specifically, he asserts that his hypertension began during military service and it was due to exposure to herbicide agents (Agent Orange) during his service in Vietnam. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In assessing the Veteran's service connection claim for hypertension, the Board must determine whether the veteran has the claimed disability. The Veteran's VA treatment records document a current diagnosis of hypertension. Furthermore, the January 2009 VA examination establishes that the Veteran has a current diagnosis of hypertension. Thus, the Board finds that the Veteran has a current diagnosis of the claimed disability. In regard to the Veteran's claim that his hypertension is a result of exposure to herbicide agents to include Agent Orange, generally, the Veteran must show the following in order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975; (2) that he currently suffers from a disease associated with exposure to certain herbicide agents enumerated under Section 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specific time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C.A. § 1116 (2012); 38 C.F.R. § 3.307(a)(6), 3.309(e) (2017). The following diseases are associated with herbicide exposure for purposes of the presumption: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as type II diabetes mellitus or adult-onset 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 (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), 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 sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The Veteran's DD Form 214 and service dental records document that he served in the Republic of Vietnam during the applicable presumptive period. Therefore, he is presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. Nonetheless, hypertension is not among the statutorily enumerated diseases set forth above for which presumptive service connection is available for veterans exposed to herbicide agents during active service. Ischemic heart disease (IHD), including but not limited to acute, subacute, and old myocardial infarction and coronary artery (CAD), is deemed to be associated with exposure to herbicides. See 38 C.F.R. § 3.309(e). 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. Id. Note 2. Accordingly, hypertension is not entitled to the presumption of service connection due to exposure to Agent Orange. Notwithstanding the above, the United States Court of Appeals for the Federal Circuit has held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See 38 U.S.C. § 1113(b) (2012); 38 C.F.R. § 3.303(d) (2017) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a Veteran from establishing service connection with proof of actual direct causation). The Board must not only determine whether the Veteran has a disability which is recognized by VA as being etiologically related to exposure to herbicides or vesicant agents, but must also determine whether his disability is otherwise the result of active service. Thus, the fact that the Veteran may not meet the requirements of a presumptive regulation does not preclude him from establishing, in the alternative, service connection by way of proof of actual direct causation. The Veteran's service treatment records do not show any complaints of, treatment for or a diagnosis of hypertension during active military service. However, the September 1969 separation examination documents that the Veteran's blood pressure was 145/81, indicating that the Veteran might have had Stage I hypertension. See VA Clinician's Guide, Chapter 7, ¶ 7.12 (June 2002) (indicating that Stage I hypertension is classified as 140 to 159 systolic or 90 to 99 diastolic). The examining physician did not record any defects or diagnoses in the space to do on the examination report. The medical evidence of a diagnosis of hypertension was in January 2002 where the Veteran reported that he was diagnosed with hypertension in 1998. With respect to whether there is sufficient medical evidence to establish an etiological link between the Veteran's current hypertension and his active service, the claims file contains conflicting medical evidence. The credibility and weight to be attached to medical opinions is within the province of the Board. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993); Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board must account for evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to medical opinion evidence, the Board looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. Guerrieri, 4 Vet. App. 467; Black v. Brown, 10 Vet. App. 279 (1997). A medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Moreover, the medical opinion "must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Most of the probative value of a medical opinion comes from its reasoning. Nieves-Rodriguez, 22 Vet. App. at 304. A December 2015 VA medical opinion shows that the reviewing physician determined that it was less likely than not that the Veteran's hypertension had its onset during service, within one year of separation of service, or otherwise related to service. The physician acknowledged the Veteran's single documented elevated blood pressure reading in service on separation examination in 1969 and explained that "a single isolated elevated blood pressure reading is not diagnostic for hypertension." Supporting that opinion, the physician cited "Overview of Hypertension in Adults" from "Up to Date" Online (www.uptodate.com), which defined the criteria for diagnosis of hypertension as "blood pressure readings equal or greater than 140/90 mm/hg based upon the average of at least two or more properly measured readings at each of two or more visits after an initial screen," according to a 2013 report of the Joint National Committee. In addition to the single elevated blood pressure reading at separation not conforming to the medically accepted definition of hypertension, the VA physician remarked, "It seems that per Veteran's history he was diagnosed in 1998 before he got into the VA medical care system...." In addition, the physician noted there was no medical evidence of a diagnosis of hypertension until 2002. Regarding the presumed exposure to herbicide agents, the reviewing VA physician opined it was less likely than not that the Veteran's hypertension was caused by his exposure to herbicide agents, to include Agent Orange, in the Republic of Vietnam. In support of his conclusion, the physician pointed out that according to VA guidelines, "hypertension has not been associated with exposure to Agent Orange." In contrast, a private physician in November 2017 provided the medical opinion that it is at least as likely as not that the Veteran's hypertension was caused by his exposure to herbicide agents while serving in Vietnam. The private physician stated that it is unclear exactly when the Veteran was diagnosed with hypertension, but based on the evidence is was definitely before 2003. She agreed with the December 2015 physician that the one recorded blood pressure of 145/8? (she was unable to read the last number) is not diagnostic of hypertension. However, the lack of other service treatment records which could provide clarity should not penalize the Veteran. She explained that there was no doubt that the Veteran was exposed to herbicide agents. The only question that remains is whether exposure to herbicide agents caused his hypertension. The physician noted hypertension was not one of the presumptive diseases associated with Agent Orange; however, there is extremely good evidence that hypertension is associated with exposure to Agent Orange. It is also well known that hypertension is a risk factor for ischemic heart disease (IHD) and stroke; which are known to be caused by exposure to Agent Orange. The private physician observed that the Institute of Medicine committee responsible for the Veterans and Agent Orange Update 2006 reviewed new studies and intensively revisited all the studies related to IHD and hypertension that had been discussed in previous updates and concluded that there was limited or suggestive evidence to support an association between exposure to herbicides used in Vietnam and hypertension. These studies showed a stronger association between hypertension than IHD. Multiple newer studies indicate a consistent pathway for how TCDD and similar compounds cause hypertension. The present committee (Update 2014) continued placement of both hypertension and IHD in the limited or suggestive evidence category. The physician found it puzzling that since 2006, hypertension is the only condition listed in the limited or suggestive evidence of association that is not presumptively service-connected to exposure to Agent Orange, despite earlier and stronger evidence of an association than IHD. The physician also explained that other than a vague, minimal smoking history, the Veteran has no other risk factors for developing hypertension and he already has a diagnosis which is attributable to Agent Orange. The physician determined that even though the Veteran smoked, one cannot say that he would have developed hypertension without being exposed to Agent Orange or that he would not have developed hypertension had he not smoked. She also explained that in addition to all of the studies referenced in the IOM report, two new studies (in 2016 and November 20017) have been published supporting the association between herbicide exposure and hypertension. In this case, the Board finds that the November 2017 private physician opinion is more probative on the question of whether the Veteran's hypertension is caused by or related to his exposure to herbicide agents that the December 2015 VA medical opinion. Specifically, the December 2015 reviewing physician's only basis for the negative nexus opinion was VA's decision to exclude it from the presumptive service connection list. The Court has held that a medical opinion that a disability is not related to Agent Orange, when it is based on the fact that the statistical correlation evidence used to determine presumptive service connection for disabilities related to Agent Orange does not support any connection, must also be based on consideration of other relevant factors to be adequate. See Polovick v. Shinseki, 23 Vet. App. 48, 52-44 (2009); Stefl v. Nicholson, 21 Vet. App. 120, 123-25 (2007). By contrast, the private physician discussed specific medical literature and studies that indicate a relationship between exposure to herbicide agents and hypertension. She provided thorough analysis relating the medical studies and literature to her medical opinion. Her analysis is consistent with the Court's memorandum decisions indicating that VA's acknowledgment in the Federal Register that there is "limited or suggestive evidence," see 79 Fed. Reg. 20308, 20310 (Apr. 11, 2014), of an association between Agent Orange exposure and hypertension is relevant to the question of whether a VA examination is warranted in connection with a claim for service connection for this disability ,and the failure to discuss the Federal Register findings rendered the Board's reasons or bases inadequate, warranting vacatur and remand. See Clark v. Shinseki, No. 12-2667, 2013 WL 6729512 (Vet. App. Dec. 20, 2013); Rodela v. Shinseki, No. 12-2894, 2013 WL 6184952 (Vet. App. Nov. 27, 2013); King v. Shinseki, No. 12-2893, 2013 WL 5428781 (Vet. App. Sept. 30, 2013); Allsopp v. Shinseki, No. 12-1847 (Vet. App. Aug. 27, 2013). See also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). Finally, the private physician noted the Veteran's risk factors of developing hypertension and discussed that in the Veteran's specific situation exposure to Agent Orange was also a likely risk factor. On this record, the Board finds that, at the very least, the competent medical opinion evidence on the question of whether the Veteran's hypertension is etiologically related to his in-service exposure to herbicide agents is relatively evenly balanced, warranting application of the benefit-of-the-doubt doctrine. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. In light of the evidence discussed above, and with resolution of reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for hypertension are met. ORDER Entitlement to service connection for hypertension due to exposure to herbicide agents is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs