Citation Nr: 1806611	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  10-38 381	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to service connection for hypertension, to include as due to herbicide exposure. 


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

P.S. McLeod, Associate Counsel

INTRODUCTION

The Veteran served on active duty from February 1968 to March 1970, to include service in the Republic of Vietnam.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.

The Veteran testified before the undersigned in a hearing in October 2014.  A transcript of the hearing has been associated with the Veteran's claims file.

This matter was previously before the Board in December 2014 and July 2016.  In both instances the Board remanded the matter for further development.

In May 2017 the Board requested that a medical expert opinion be obtained by the Director of the VA Healthcare Systems. 


FINDING OF FACT

Hypertension is etiologically related to the Veteran's in-service herbicide exposure.


CONCLUSION OF LAW

The criteria for service connection for hypertension have been met.  38 U.S.C. §§ 1110, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Generally, in order to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The Veteran seeks service connection for hypertension, to include as due to herbicide exposure.  The Veteran has confirmed service in the Republic of Vietnam and therefore his exposure to herbicides in conceded.  38 C.F.R. § 3.307 (a)(6)(iii).  The Veteran has a current diagnosis of hypertension.  While hypertension is not a disease that is entitled to presumptive service connection due to herbicide exposure pursuant to 38 C.F.R. § 3.309(e), the National Academy of Sciences (NAS) has placed hypertension in the category of "limited or suggestive evidence of an association" with exposure to herbicides.  See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924, 47,926 (Aug. 10, 2012).

Pursuant to the Board's prior remand the Veteran was afforded a VA examination to assess the etiology of his hypertension in September 2016.  The VA examiner opined that it was less likely as not that the Veteran's hypertension was etiologically related to his service, to include herbicide exposure in the Republic of Vietnam.  The VA examiner based this opinion on an inability to "locate any current evidence that documents a credible connection between the onset of the essential hypertension and exposure to herbicides such as Agent Orange."

In May 2017 the Board requested a medical expert opinion pursuant to VHA Directive 1602 regarding the Veteran's claim.  An expert medical opinion was provided in January 2018.  It was the opinion of the medical expert that the Veteran's hypertension, diagnosed in 2002, was at least as likely as not caused by Agent Orange exposure in the Republic of Vietnam.  The medical expert rendered this opinion after specifically considering the findings in the NAS report cited above.

The Board finds that entitlement to service connection for hypertension due to herbicide exposure is warranted.  Specifically the Board finds the January 2018 opinion of the medical expert to be more probative than the other medical opinions of record.  The Board, in the prior decision found the October 2015 VA examination and opinion to be inadequate and therefore will not consider that opinion in this decision.  What is left is the September 2016 VA examination and opinion and the January 2018 medical expert opinion.  The Board finds the September 2016 VA examiner's opinion to be less probative because the supporting rationale relied on a lack of medical evidence supporting a nexus between hypertension and herbicide exposure.  As stated above NAS has found "limited or suggestive evidence of an association" between hypertension and herbicide exposure.  The September 2016 VA examiner either did not consider the NAS report or failed to address it.  The medical expert in the January 2018, however, specifically considered the NAS report in rendering the requested opinion.  Therefore, service connection for hypertension as due to herbicide exposure is warranted


ORDER

Entitlement to service connection, to include as due to herbicide exposure is granted.




____________________________________________
M.E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs