Citation Nr: 1817283 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 10-04 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for hypertension, to include as secondary to a service-connected disability, and/or the result of in-service exposure to herbicide agents. REPRESENTATION Veteran represented by: Robert V. Crisholm, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Carolyn Colley, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to February 1971, with service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. During the course of the appeal, the claims file was transferred to the RO in Des Moines, Iowa, where jurisdiction over the appeal now lies. In January 2014, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. During the hearing, the undersigned engaged in a colloquy with the Veteran toward substantiation of the claim. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). However, the Board was unable to produce a written transcript of the hearing due to technical difficulties in its Digital Audio Recording System. The Veteran declined an opportunity to testify at another hearing. In March 2016, the Board denied the Veteran's claim of service connection for hypertension, to include as secondary to his service-connected disabilities. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court), and in December 2016 the parties agreed to remand the issue to the Board on the basis of an insufficient VA examination. In March 2017, the Board remanded the Veteran's appeal for further development of the record. The matter is ready for appellate review. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era. 2. The evidence is at least in equipoise as to whether the Veteran's current diagnosis of hypertension is related to his period of active duty service. CONCLUSION OF LAW The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is seeking entitlement to service connection for hypertension on the basis that it was caused secondary to a service-connected disability, and/or is a result of in-service exposure to herbicide agents. In August 2017, the Veteran's private medical care provider opined that the Veteran's hypertension was caused by herbicide agent exposure during active duty service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). In order to benefit from the presumption of service connection for diseases associated with herbicide exposure, the Veteran must have one of the diseases enumerated in 38 C.F.R § 3.309(e). Hypertension is not so enumerated. Id. Alternatively, when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by demonstrating that the disease was in fact "incurred" during service by proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed Cir. 1994). The Veteran served in Vietnam and is presumed to have been exposed to herbicide agents. As to the medical evidence, the claims file contains a diagnosis of hypertension and treatment, starting in at least March 2001. In April 2017, a VA examiner reviewed the claims file and determined that the Veteran's hypertension was less likely than not incurred in or causally-linked to his period of active duty service. Specifically, the examiner reported that the Veteran's service treatment records are silent for hypertension, and the Veteran was not diagnosed with hypertension within one year after separation from active duty service. Notably, the examiner reported that the Veteran has primary hypertension and, therefore, his hypertension was not caused by some other condition. The examiner stated that the Veteran's currently-diagnosed disabilities of PTSD, coronary artery disease, atherosclerosis of the coronary arteries, and diabetes mellitus are not known secondary causes for hypertension. Additionally, the examiner concluded that there was no evidence of aggravation, nor any specific point in time that the condition appears to have significantly worsened or changed outside the typical natural progression. Also, the examiner stated that the Veteran was not prescribed any medications that might be linked to elevated blood pressure. The examiner stated that the Veteran's service treatment records are silent for diagnostic criteria or treatment of hypertension. The examiner did not provide an opinion as to any causal link between hypertension and exposure to herbicide agents. In August 2017, after reviewing his claims file and medical history, Victoria A. Cassano, M.D. opined that the Veteran's hypertension was caused by his active duty service. Specifically, Dr. Cassano concluded that the Veteran's presumed exposure to herbicide agents is at least as likely as not the cause of his hypertension. Dr. Cassano's opinion indicates she reviewed the Veteran's medical history and contains sound rationale, including citations to scientific research suggesting a causal link (e.g., Institute of Medicine reports, a National Health and Nutrition Education study) associating hypertension and herbicide agent exposure. The physician stated that while the Veteran has other risk factors for hypertension, none of these factors have been implicated as the source of his chronic hypertension. The Board will grant the benefit of the doubt to the Veteran and grant the benefit on the basis of direct service connection, supported by an adequate medical opinion as to the Veteran in this matter. The present decision is based on the record in this appeal, and carries no precedential weight as to any other pending cases. 38 C.F.R. § 20.1303. ORDER Entitlement to service connection for hypertension is granted. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs