Citation Nr: 19137213 Decision Date: 05/14/19 Archive Date: 05/14/19 DOCKET NO. 16-30 905 DATE: May 14, 2019 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for type II diabetes mellitus due to herbicide exposure; as such, the petition to reopen the claim is granted. New and material evidence has been received to reopen a claim of entitlement to service connection for coronary artery disease (CAD) due to herbicide exposure; as such, the petition to reopen the claim is granted. Service connection for type II diabetes mellitus due to herbicide exposure is granted. Service connection for coronary artery disease due to herbicide exposure is granted. Service connection for peripheral neuropathy bilateral upper extremities is granted. Service connection for peripheral neuropathy bilateral lower extremities is granted. REMANDED Entitlement to service connection for hypertension due to herbicide agent exposure is remanded. FINDINGS OF FACT 1. In an unappealed decision of February 2005, the RO denied the Veteran’s claim of entitlement to service connection for type II diabetes mellitus. 2. Evidence received since the February 2005 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for type II diabetes mellitus. 3. In an unappealed decision of February 2012, the RO denied the Veteran’s attempt to reopen his claim of entitlement to service connection for coronary artery disease. 4. Evidence received since the February 2012 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for CAD. 5. The Veteran served in the Republic of Vietnam during the Vietnam Era and is therefore presumed to have been exposed to herbicide agents such as Agent Orange. 6. The Veteran has been diagnosed with type II diabetes mellitus. 7. The Veteran has been diagnosed with coronary artery disease. 8. The Veteran has peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities as a result of his service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. The February 2005 rating decision that denied entitlement to service connection for type II diabetes mellitus is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. 2. The criteria for reopening a claim of entitlement to service connection for type II diabetes mellitus have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The February 2012 rating decision that denied entitlement to service connection for CAD is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. 4. The criteria for reopening a claim of entitlement to service connection for CAD have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 5. The criteria to establish service connection for type II diabetes mellitus are met. 38 U.S.C. §§ 1110, 1112, 1116, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). 6. The criteria for service connection for coronary artery disease have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 7. The criteria for service connection for peripheral neuropathy of the bilateral upper extremities have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 8. The criteria for service connection for peripheral neuropathy of the bilateral lower extremities have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1964 to June 1966. This matter comes before the Board of Veterans’ Appeals (hereinafter Board) on appeal from an October 2014 rating decision, which denied the Veteran’s attempt to reopen his claims of entitlement to service connection for type II diabetes mellitus and service connection for coronary artery disease (CAD); that rating decision also denied service connection for hypertension, service connection for peripheral neuropathy of the upper extremities, and service connection for peripheral neuropathy of the lower extremities. The Veteran perfected a timely appeal to that decision. On August 16, 2018, the United States Court of Appeals for the Federal Circuit ordered the appeal of Procopio v. Wilkie, No. 17-1821 (U.S. Fed. Cir.). The order stated that the questions before the Federal Circuit include the following: “Does the phrase ‘served in the Republic of Vietnam’ in 38 U.S.C. § 1116 unambiguously include service in offshore waters within the legally recognized territorial limits of the Republic of Vietnam, regardless of whether such service included presence on or within the landmass of the Republic of Vietnam?” Consequently, a stay was placed on all the adjudication of all appeals for compensation based on alleged exposure to Herbicide Agents in the Offshore Waterways of the Republic of Vietnam. The U.S. Court of Appeals for the Federal Circuit issued an en banc precedential decision in Procopio v. Wilkie (17-1821), which reversed the Court’s holding in Haas v. Peak, 525 F.3d 1168 (Fed. Cir. 2008), and the stay on affected appeals was lifted. In reversing the Court’s holding, the Federal Circuit found that “veterans who served in the 12-nautical mile territorial sea of the Republic of Vietnam meet the criterion of 38 U.S.C. § 1116(f) that they “served in the Republic of Vietnam,” regardless of whether they had duty or visitation on the ground or in the inland waters of Vietnam.” While the Board acknowledges that the Veteran submitted an October 2018 Rapid Appeals Modernization Program (RAMP) opt-in election form, the appeal had already been activated at the Board and is therefore no longer eligible for the RAMP program. Accordingly, the Board will undertake appellate review of the case. Service Connection Generally, a claim which has been denied in an unappealed AOJ decision is final and may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. § 20.1100 (2018). Once the AOJ makes a determination as to a claim, it must mail to the claimant, and his or her representative if there is one, proper notice of the decision, including notice of the claimant's procedural due process and appellate rights. 38 U.S.C. § 7105 (b)(1) (2012); 38 C.F.R. §§ 3.103 (b)(1), 19.25, 20.1103 (2018). An appeal of an AOJ decision to the Board is initiated by the filing of a notice of disagreement (NOD) with the decision. 38 U.S.C. § 7105 (a) (2012); 38 C.F.R. § 20.200 (2018). Except in the case of simultaneously contested claims (which this is not) the NOD must be filed within one year from the date of mailing of result of the initial determination. See 38 U.S.C. § 7105 (b)(1); see also 38 C.F.R. §§ 20.200, 20.201, 20.302 (2018). If a timely NOD is not filed, the determination becomes final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with Title 38 of the U.S. Code. 38 U.S.C. § 7105 (c) (2012). The exception to this rule of not reviewing the merits of a finally denied claim is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The regulation that implements 38 U.S.C. § 5108 defines "new and material evidence" as evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of evidence previously of record, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a) (2018). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence already of record and must raise a reasonable possibility of substantiating the claim. Id. Of note, under 38 C.F.R. § 3.156 (b), "new and material" evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. If VA receives new evidence within the appeal period of an AOJ decision, it must make a determination as to whether the evidence is new and material and if it does not do so then the claim does not become final but rather it remains pending. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). In determining whether evidence is "new and material," the credibility of the evidence in question must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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, 1131 (2012); 38 C.F.R. § 3.303 (a) (2018). “To establish a right to compensation for a present disability, a Veteran must show: “(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”- the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, service connection may be established either by showing that a chronic disability or disease was incurred during service and later manifestations of such chronic disability or disease are not due to intercurrent cause(s) or that a disorder or disease was incurred during service and there is evidence of continuity of symptomatology which supports a finding of chronicity since service. 38 C.F.R. § 3.303 (b). When a chronic disease becomes manifest to a degree of 10 percent within one year of a veteran’s discharge from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the veteran’s period of service. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). A veteran who served in the Republic of Vietnam during the Vietnam era (January 9, 1962, to 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) (2018). For veterans presumed to have been exposed to herbicide agents during the required period, a presumption of service connection exists for certain enumerated diseases, to include diabetes mellitus. See 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307, 3.309(e). In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service, the veteran must show the following: (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 38 C.F.R. § 3.309 (e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e); McCartt v. West, 12 Vet. App. 164, 166 (1999). In Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) reversed the Court’s holding in Haas v. Peak, 525 F.3d 1168 (Fed. Cir. 2008). In reversing the Court’s holding, the Federal Circuit found that “veterans who served in the 12-nautical mile territorial sea of the Republic of Vietnam meet the criterion of 38 U.S.C. § 1116(f) that they “served in the Republic of Vietnam,” regardless of whether they had duty or visitation on the ground or in the inland waters of Vietnam.” 1. whether new and material evidence has been received to reopen a claim of service connection for type II diabetes mellitus Historically, the Veteran initially filed a claim for service connection for diabetes mellitus (VA Form 21-526) in September 2004. Submitted in support of the claim were VA progress notes dated from May 2004 to September 2004, which show that the Veteran was receiving medication for diabetes. A primary care note, dated in May 2004, indicates that the Veteran had been diagnosed with diabetes mellitus in 1998. Also submitted in support of the claim was a response to a request for records from the National Personnel Records Center (NPRC), dated in January 2005, indicating that they were unable to determine whether or not the Veteran had in-country service in the Republic of Vietnam. The NPRC noted that the Veteran served aboard the USS Lynde McCormick DDG 8 which was in the official waters of the Republic of Vietnam from August 8, 1964 to September 3, 1964, September 9, 1964 to September 14, 1964, September 26, 1964 to October 6, 1964, October 27, 1964 to November 5, l964, December 23, 1964 to December 31, 1964, and April 1, 1966 to April 6, 1966. Submitted in support of the Veteran’s claim was a physician’s statement from Dr. Tim Frey, dated in November 2004, indicating that the Veteran has been diagnosed with type II diabetes mellitus; he noted that he started treating the Veteran for his diabetes in August 1999. Dr. Frey further noted that the Veteran had neurological complications that are directly due to his diabetes mellitus. By a February 2005 rating decision, the RO denied entitlement to service connection for type II diabetes mellitus, associated with herbicide exposure, based on a finding that the Veteran was not shown to have set foot on land in the country of Vietnam; as such, exposure to herbicide is not shown since he did not serve in the Republic of Vietnam during the Vietnam era. The Veteran did not file a notice of disagreement (NOD) with that determination within one year of the notification thereof in February 2005. Consequently, as no timely NOD or new and material evidence was received during the appeal period following the February 2005 notice of determination, that decision became final. See 38 C.F.R. § 3.156 (b); Buie v. Shinseki, 24 Vet. App. 242, 252 (2010); 38 C.F.R. §§ 20.200, 20.201, 20.1103 (2018). New and material evidence is therefore required to reopen the claim of service connection for a heart condition. See 38 U.S.C. § 5108 (2012); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. The Veteran’s request to reopen his claim for service connection for type II diabetes mellitus (VA Form 21-526EZ) was received in February 2014. Submitted in support of the claim were VA progress notes dated from February 2003 to April 2011, which show that the Veteran received ongoing treatment for diabetes mellitus. Also considered is a memorandum, dated in January 2012, wherein the RO determined that a review of the Deck logs for the USS Lynde McCormick provided no conclusive proof of in-country service. The RO agreed with the findings of the Joint Services Records Research Center (JSRRC) coordinator who reviewed the evidence of record in July 2011 and stated that “based on the available evidence, in-country Vietnam service was not conceded,” although they had established’ that the Veteran was in the official waters of Vietnam. Submitted in support of the Veteran’s claim is a decision by the U.S. Court of Appeals for the Federal Circuit issued an en banc precedential decision in Procopio v. Wilkie (17-1821), which found that “veterans who served in the 12-nautical mile territorial sea of the Republic of Vietnam meet the criterion of 38 U.S.C. § 1116(f) that they “served in the Republic of Vietnam,” regardless of whether they had duty or visitation on the ground or in the inland waters of Vietnam. After having carefully considered the matter, the Board believes that the additionally added evidence referred to above is new and material evidence which serves to reopen the claim. In particular, the Procopio decision maintains that a Veteran does not have to have set foot on the ground in Vietnam in order to be considered to have “served in Vietnam” and be presumed to have been exposed to herbicides. Therefore, this decision relates to an unestablished fact necessary to substantiate the claim and present a reasonable possibility of substantiating the claim. The claim is therefore reopened. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for CAD Historically, the Veteran initially filed a claim for service connection for heart disease (VA Form 21-526) in September 2004. Submitted in support of the claim were VA progress notes dated from May 2004 to September 2004, which show that the Veteran was receiving medication for CAD. A primary care note, dated in May 2004, reflects a past medical history of CAD with myocardial infarction in April 1989 and 1998; the assessment was CAD, symptoms controlled. Also submitted in support of the claim was a response to a request for records from the National Personnel Records Center (NPRC), dated in January 2005, indicating that they were unable to determine whether or not the Veteran had in-country service in the Republic of Vietnam. The NPRC noted that the Veteran served aboard the USS Lynde McCormick DDG 8 which was in the official waters of the Republic of Vietnam from August 8, 1964 to September 3, 1964, September 9, 1964 to September 14, 1964, September 26, 1964 to October 6, 1964, October 27, 1964 to November 5, l964, December 23, 1964 to December 31, 1964, and April 1, 1966 to April 6, 1966. By a February 2005 rating decision, the RO denied entitlement to service connection for CAD (claimed as a heart condition), based on a finding that the condition neither occurred in nor was caused by service. The Veteran did not file a notice of disagreement (NOD) with that determination within one year of the notification thereof in February 2005. In a report of contact (VA Form 21-0820), dated in June 2010, the Veteran sought to reopen his claim of service connection for heart disease. Submitted in support of the claim were VA progress notes dated from February 2003 through April 2011, reflecting a diagnosis of CAD. Also submitted in support of the claim were private treatment reports dated from April 1997 to January 2011. By a rating action in August 2011, the RO reopened the claim for service connection for coronary artery disease but confirmed the previous denial of the claim on the merits. In the Defense Personnel Records Information Retrieval System (DPRIS) response text, dated in July 2011, it was noted that the Veteran served aboard the USS Lynde McCormick DDG 8 which was in the official waters of the Republic of Vietnam from August 8, 1964 to September 3, 1964, September 9, 1964 to September 14, 1964, September 26, 1964 to October 6, 1964, October 27, 1964 to November 5, l964, December 23, 1964 to December 31, 1964, and April 1, 1966 to April 6, 1966. Of record is a memorandum, dated in January 2012, wherein the RO determined that a review of the Deck logs for the USS Lynde McCormick provided no conclusive proof of in-country service. The RO agreed with the findings of the Joint Services Records Research Center (JSRRC) coordinator who reviewed the evidence of record in July 2011 and stated that “based on the available evidence, in-country Vietnam service was not conceded,” although they had established’ that the Veteran was in the official waters of Vietnam. By a rating action in February 2012, the RO confirmed and continued the denial of service connection for CAD. The RO stated that in the absence of proof of in-country Vietnam service, the claim remained denied for service connection for CAD due to exposure to herbicide. The Veteran did not appeal that decision within one year of the notice thereof. Consequently, as no timely NOD or new and material evidence was received during the appeal period following the February 2012 notice of determination, that decision became final. See 38 C.F.R. § 3.156 (b); Buie v. Shinseki, 24 Vet. App. 242, 252 (2010); 38 C.F.R. §§ 20.200, 20.201, 20.1103 (2018). New and material evidence is therefore required to reopen the claim of service connection for CAD. See 38 U.S.C. § 5108 (2012); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. The Veteran’s request to reopen his claim for service connection for CAD (VA Form 21-526EZ) was received in February 2014. Submitted in support of the claim were private treatment reports, dated in April 1989, showing treatment for chest pain, which resulted in a diagnosis of acute myocardial infarction and total right coronary occlusion. Additional evidence includes a decision by the U.S. Court of Appeals for the Federal Circuit issued an en banc precedential decision in Procopio v. Wilkie (17-1821), which found that “veterans who served in the 12-nautical mile territorial sea of the Republic of Vietnam meet the criterion of 38 U.S.C. § 1116(f) that they “served in the Republic of Vietnam,” regardless of whether they had duty or visitation on the ground or in the inland waters of Vietnam. After having carefully considered the matter, the Board concludes that the additionally added evidence referred to above is new and material evidence which serves to reopen the claim. In particular, the Procopio decision maintains that a Veteran does not have to have set foot on the ground in Vietnam in order to be considered to have “served in Vietnam” and be presumed to have been exposed to herbicides. Therefore, this decision relates to an unestablished fact necessary to substantiate the claim and present a reasonable possibility of substantiating the claim. The claim is therefore reopened. 3. Service connection for coronary artery disease 4. Service connection for type II diabetes mellitus In the instant case, the Veteran claims that he was exposed to herbicides while stationed on the USS Lynde McCormick. Throughout the course of this appeal, the Veteran has contended that he was exposed to herbicides while serving aboard the USS Lynde McCormick in Vietnam. The Veteran's military personnel records reflect that he was stationed on board the USS Lynde McCormick DDG-8 USS. NPRC noted that the Veteran served aboard the USS Lynde McCormick DDG 8 which was in the official waters of the Republic of Vietnam from August 8, 1964 to September 3, 1964, September 9, 1964 to September 14, 1964, September 26, 1964 to October 6, 1964, October 27, 1964 to November 5, l964, December 23, 1964 to December 31, 1964, and April 1, 1966 to April 6, 1966. In the Defense Personnel Records Information Retrieval System (DPRIS) response text, dated in July 2011, it was noted that the Veteran served aboard the USS Lynde McCormick DDG 8 which was in the official waters of the Republic of Vietnam from August 8, 1964 to September 3, 1964, September 9, 1964 to September 14, 1964, September 26, 1964 to October 6, 1964, October 27, 1964 to November 5, l964, December 23, 1964 to December 31, 1964, and April 1, 1966 to April 6, 1966. Of record is a memorandum, dated in January 2012, wherein the RO determined that a review of the Deck logs for the USS Lynde McCormick provided no conclusive proof of in-country service. The RO agreed with the findings of the Joint Services Records Research Center (JSRRC) coordinator who reviewed the evidence of record in July 2011 and stated that “based on the available evidence, in-country Vietnam service was not conceded,” although they had established’ that the Veteran was in the official waters of Vietnam. While the record indicates that the Veteran never set foot on the ground in Vietnam, never went ashore and had no in-country service, the Board finds that the record clearly indicates that the Veteran was stationed on the USS Lynde McCormick when it was in the territorial waters of Vietnam. In light of the recent Federal Circuit decision in Procopio, the Board finds that the Veteran had service in the Republic of Vietnam, so is presumed to have been exposed to herbicides. See 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). A review of the medical evidence of record, VA as well as private treatment reports, dated from April 1989 through April 2011, in this case makes clear the Veteran has been diagnosed with type II diabetes mellitus and CAD. Specifically, during a neurological visit in August 2008, the Veteran was diagnosed with DM type 2 and diabetic neuropathy. During another clinical visit in August 2008, the examiner noted that the Veteran had DM2 and possible neuropathy. A treatment note in June 2010 reflects diagnoses of DM and CAD, symptoms controlled. In January 2011, the Veteran underwent an evaluation for history of Parkinsonism; following the evaluation, he was diagnosed with CAD and DM type 2. As noted above, service connection due to exposure to herbicide agents is presumed when certain diseases, such as diabetes mellitus and CAD, manifest to a compensable degree at any time after service under 38 C.F.R. § 3.309 (e). As the Board has conceded exposure to herbicides in Vietnam while serving aboard the USS Lynde McCormick, the Veteran's diabetes mellitus, type II, and coronary artery disease, are presumed to be associated with his in-service herbicide exposure. See 38 C.F.R. § 3.309 (e). There is no clear and convincing evidence to rebut this presumption. As a result, the Board finds that the evidence supports a grant of service connection for diabetes mellitus, type II, and coronary artery disease on a presumptive basis as a result of herbicide exposure. 5. Service connection for peripheral neuropathy of the lower extremities, bilateral 6. Service connection for peripheral neuropathy of the upper extremities, bilateral The Veteran seeks entitlement to service connection for peripheral neuropathy of the bilateral lower and upper extremities, which he contends is due to his diabetes mellitus, type II. After a thorough review of the file, the Board concludes that the Veteran is entitled to such secondary service connection. At the outset, as discussed above, the Board notes that 38 C.F.R. § 3.309 (e) specifically lists those diseases covered by the provision, and only early-onset peripheral neuropathy is specifically listed as a disease subject to presumptive service connection. As the medical evidence of record does not show that the Veteran's peripheral neuropathy manifested within one year of being exposed to herbicides in Vietnam, the Veteran's peripheral neuropathy cannot be classified as early-onset peripheral neuropathy. Therefore, service connection for bilateral peripheral neuropathy cannot be granted on a presumptive basis. However, the record clearly demonstrates that the Veteran has a present diagnosis of diabetes mellitus, type II. Moreover, VA as well as private treatment reports reflect diagnoses of peripheral neuropathy. Of record is the report of a neurological evaluation, dated in August 2008, reflecting diagnoses of diabetic neuropathy. A neurological evaluation report dated in October 2013 noted a finding of peripheral neuropathy. A neurology note dated in November 2010 reported complaints of tremor in the hands; the Veteran also reported weakness in his legs and some burning in his thighs and swelling. The impression was peripheral neuropathy. In light of the foregoing, the Board finds that the preponderance of the evidence is in favor of granting service connection for diabetic peripheral neuropathy of the bilateral upper extremity and diabetic peripheral neuropathy of the bilateral lower extremities on a secondary basis. REASONS FOR REMAND After examining the record, the Board concludes that further assistance to the Veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C. § 5103A. The specific bases for remand are set forth below. 1. Entitlement to service connection for hypertension is remanded. A medical examination or opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability, (2) evidence establishing that an event, injury, or disease occurred in service, 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) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. 5103A (d)(2) (2017); 38 C.F.R. 3.159 (c)(4)(i) (2018). The Veteran's treatment records show ongoing treatment for his hypertension; therefore, he can establish a current disability. As noted above, the Veteran's military records reveal that he served aboard the USS Lynde McCormick DDG 8 which was in the official waters of the Republic of Vietnam from August 8, 1964 to September 3, 1964, September 9, 1964 to September 14, 1964, September 26, 1964 to October 6, 1964, October 27, 1964 to November 5, l964, December 23, 1964 to December 31, 1964, and April 1, 1966 to April 6, 1966. In light of the above, the Board has conceded the Veteran's active service in the Republic of Vietnam and has been granted service connection for diabetes mellitus type II based upon presumed exposure to herbicide agents. Hypertension is not one of the specified diseases for which service connection may be presumed based upon the Veteran's presumed exposure to herbicides during his service in the Republic of Vietnam, see 38 C.F.R. § 3.309 (e) (2018); see also 68 Fed. Reg. at 630 ; however, in 2008 the National Academy of Sciences (NAS) concluded that there was "limited or suggestive evidence of an association" between hypertension and herbicide exposure. See 75 Fed. Reg. 32,540, 32,549 (June 8, 2010); 75 Fed. Reg. 81,332, 81,333 (December 27, 2010). Most recently, NAS has upgraded the relationship between hypertension and agent orange exposure from "limited or suggestive" to "sufficient," indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. Therefore, an additional medical opinion is needed to address this recent update. This suggestive evidence of an association between hypertension and herbicide exposure can arguably be sufficient to establish an "indication" that the current disability "may be related" to herbicide exposure during service, especially in light of the "low threshold" when assessing the need for a medical examination. See 38 U.S.C. § 5103A (d)(2)(B) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As such, upon remand, an opinion as to whether the Veteran's hypertension is a result of his presumed exposure to herbicides during active service in Vietnam should be obtained upon remand. The matter is REMANDED for the following action: 1. Obtain all outstanding VA records and all private medical records identified by the Veteran as pertinent to the claim on appeal. All such available documents should be associated with the claims file. 2. Ensure that the Veteran is scheduled for an examination with an appropriate examiner to determine the nature and etiology of the Veteran's hypertension. The examiner should fully review the claims file and the directives of this remand. Any indicated diagnostic tests and studies must be accomplished, and all pertinent symptomatology and findings should be reported in detail. The examiner should then address the following questions: Whether it is as likely as not (a 50 percent probability or greater) that the Veteran's hypertension is caused by the service-connected diabetes mellitus type II and/or coronary artery disease. If the answer to (a) is negative, whether it is as likely as not (a 50 percent probability or greater) that the Veteran's hypertension is aggravated (permanently worsened beyond natural progression) by the service-connected diabetes mellitus type II and/or coronary artery disease. If the examiner finds that diabetes mellitus, type II, and/or coronary artery disease aggravates the hypertension, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for hypertension prior to aggravation. If the examiner is unable to establish a baseline for the hypertension prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's hypertension is related to his active service, including his presumed exposure to herbicides in Vietnam. Consider and discuss NAS’s Update 2018, which reflects that NAS has placed hypertension in the category of “sufficient,” indicating that “there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. See Veterans and Agent Orange: Update 11 (2018) https://www.nap.edu/read/25137/chapter/1 (page 465) (last accessed February 11, 2019). All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. If any requested opinion cannot be provided without resorting to mere speculation, the examiner should explain why an opinion cannot be provided without resorting to speculation. (Continued on the next page)   3. Thereafter, re-adjudicate the Veteran's claim on the basis of all evidence of record and all applicable laws and regulations. If any determination remains unfavorable to the Veteran, furnish to him and his representative a supplemental statement of the case (SSOC) and allow an appropriate opportunity to respond thereto before returning the case to the Board. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs 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.