Citation Nr: 18159060 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 12-31 317 DATE: December 19, 2018 ORDER Entitlement to service connection for hypertension is denied. FINDING OF FACT Hypertension was not manifest in active service or within one year of separation from active service, hypertension was not shown during a period of ACDUTRA and hypertension is unrelated to service. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1969 to June 1971, serving in Vietnam from January 1971 to May 1971. The Veteran also served on active duty from July 1984 to December 1984, from February 2003 to December 2003 and from August 2006 to June 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The claim was previously before the Board and was remanded for further development in August 2008. The August 2008 remand requested an examination to determine the etiology of the Veteran’s hypertension. Entitlement to service connection for hypertension is denied Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. 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) (2016). To establish service connection on a direct basis, a Veteran must show: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101 (21), (24) (2016); 38 C.F.R. § 3.6 (a), (d); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes. 38 C.F.R. § 3.6 (c)(1). Hypertension is a “chronic disease” listed under 38 C.F.R. § 3.309 (a). Therefore, the provisions of 38 C.F.R. § 3.303 (b) are for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Presumptive periods do not apply to ACDUTRA or INACDUTRA. See Biggins, 1 Vet. App. at 477-78. Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303 (b). Where a Veteran served continuously for ninety days or more of active service during a period of war or during peacetime service after December 31, 1946, and hypertension becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. VA regulations provide for presumptive service connection for specific diseases associated with exposure to herbicide agents. Those diseases that are listed at 38 C.F.R. § 3.309 (e) shall be presumptively service-connected if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of such disease during service. Notably, hypertension is not listed at 38 C.F.R. § 3.309 (e); however, the provisions for presumptive service connection do not preclude a claimant from establishing service connection with proof of actual direct causation, on the basis that his exposure to Agent Orange led to the development of the claimed disability after service. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b) (West 2015). The Veteran is seeking service connection for hypertension. Specifically, he has alleged it was caused by his exposure to herbicide agents during service in Vietnam. As noted above the Veteran served in Vietnam from January to May of 1971, thus he is presumed to have been exposed to herbicides. 38 C.F.R. §3.307(a)(6)(iii). A VA examination dated February 2018 notes that the Veteran was first diagnosed with hypertension in 1996 and has continued to exhibit symptoms since then. Thus, the first element has been met in that the Veteran has a currently diagnosed condition. As verified by his service records the Veteran served in Vietnam from January to May of 1971 and thus is presumed to have been exposed to herbicide agents, satisfying the second element of an in-service incident. However, the record does not demonstrate a nexus between the Veteran’s current diagnosis of hypertension and his service. As noted above the claim was remanded in a November 2017 rating decision to determine the etiology of the Veteran’s hypertension. A VA examination was conducted in February of 2018. The examiner opined that the Veteran’s hypertension was less likely than not caused by his exposure to herbicides in Vietnam and was more likely caused by aging, being a member of the male gender, and genetic predisposition. The examiner indicated that the claim file was reviewed. In addition, as referenced above, hypertension is not one of the diseases where service connection is presumed based on exposure to herbicides. The Veteran did cite a study from the National Academy of Sciences Institute of Medicine in 2006 which indicated that there is “limited or suggestive” evidence of an association between herbicide exposure and hypertension. The examiner noted this study and indicated that VA has asked the Health and Medicine Division (HMD), formerly known as the Institute of Medicine (IOM), of the National Academies of Sciences, Engineering, and Medicine to continue research and investigation with respect to new and additional conditions that may be related to herbicide exposure and noted that as of December 2017 hypertension is still not recognized as a presumptive condition of herbicide exposure. Regarding service connection based on chronic disease and continuity of symptoms, the examiner noted that while hypertension is defined as a “chronic” disease the Veteran was officially diagnosed in 1996, twenty-five years after leaving service in 1971 and twelve years after leaving service in 1984. As the condition did not manifest to a compensable degree within a year after discharge in 1984, service connection based on “chronic disease” is not warranted. Additionally, the Veteran was already diagnosed with hypertension upon reentering service in February 2003 and August 2006 and there is no evidence to suggest that service during that time aggravated the condition in any way. Accordingly, on this record, the evidence is found to preponderate against the claim for service connection for hypertension on a direct and presumptive basis. Therefore, service connection is denied. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Luby, Associate Counsel