Citation Nr: 19144647 Decision Date: 06/11/19 Archive Date: 06/10/19 DOCKET NO. 16-04 321 DATE: June 11, 2019 ORDER Entitlement to service connection for hypertension, to include as a result of exposure to herbicide agents, including Agent Orange, is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the evidence supports a finding of a medical nexus between the Veteran’s hypertension and his herbicide agent exposure, including Agent Orange, while serving in Vietnam. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension, to include as a result of herbicide agent exposure, including Agent Orange, have been met. 38 U.S.C. §§ 1101, 1110, 1131, 1137, 1154(a), 5107 (2012); 38 C.F.R. §§ 3.303, 3.102, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from February 1969 to February 1971. This appeal to the Board of Veteran’s Appeals (Board) arose from October 2014 and April 2015 rating decisions by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran has perfected the appeal. See October 2015 Notice of Disagreement; January 2016 Statement of the Case (SOC); January 2016 Substantive Appeal (VA Form 9). In June 2018, the Veteran filed a new claim of service connection for hypertension. An August 2018 rating decision denied service connection for hypertension. As the hypertension issue was already on appeal, the August 2018 rating decision is nonconsequential and neither confers nor deprives the Board of jurisdiction over this issue. See Juarez v. Peake, 21 Vet. App. 537, 543 (2008) (discussing Myers v. Principi, 16 Vet. App. 228 (2002)) (once a NOD has been filed, further RO decisions, which do not grant the benefit sought, cannot resolve the appeal that remains pending before the Board; only a subsequent Board decision can resolve an appeal that was initiated but not completed). The Veteran requested a hearing before the Board. The requested hearing was conducted in September 2018 by the undersigned Veterans Law Judge. A transcript of the hearing is associated with the file. Service Connection A Veteran is granted service connection where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in-service injury or event; and (3) a nexus between the current disability and the in-service injury or event. 38 C.F.R. §3.303(a). A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Service connection based on herbicide agent exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period in the case of certain diseases. 38 U.S.C.§ 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Even if a Veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide agent exposure, VA must also consider the claim on a direct service connection basis. When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, after careful consideration of all procurable and assembled data, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not prove or disprove the claim satisfactorily. It is a substantial doubt and one within range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. §3.102. 1. Entitlement to service connection for hypertension, to include as a result of herbicide agent exposure, including Agent Orange. The Veteran contends that he currently has hypertension due to his service in Vietnam, specifically being exposed to Agent Orange. The evidence establishes that the Veteran has a current diagnosis of hypertension. See VA Treatment Records from December 2014 to September 2015. Regarding an in-service injury or event, the Veteran has verified service in Vietnam, meaning that exposure to herbicide agents, including Agent Orange, is conceded. See DD Form 214. Thus, an in-serve injury or event has been established. Additionally, the Veteran stated that when he went on sick call for stomach pain in 1970, he was told that his blood pressure was 140/102. A review of the service treatment records shows that in July 1970, the Veteran was seen for stomach pain and his blood pressure was recorded as being 140/102. As mentioned before, service connection based on herbicide agent exposure will be presumed for certain diseases. Hypertension is not one of those enumerated diseases. However, the Board must still consider whether service connection is warranted on a direct basis. Regarding whether there is a nexus between the Veteran’s hypertension and his Agent Orange exposure while in Vietnam, the Board takes judicial notice of the existence of the finding by the National Academies of Sciences, Engineering and Medicine (NAS) that there is sufficient evidence of an association between hypertension and exposure to Agent Orange and other herbicides used during the Vietnam War. See Veterans and Agent Orange: Update 11 (2018); Smith v. Derwinski, 1 Vet. App. 235, 238 (1991) (regarding judicial notice); see generally Polovick v, Shinseki, 23 Vet. App. 48, 54 (2009) (NAS’s statistical analysis of the scientific and medical data pertaining to the health effects of Agent Orange exposure remains a source of relevant, competent evidence that VA may “consider when assessing whether the totality of the evidence is sufficient to establish service connection on a direct basis”). In this matter, on the February 2014 Disability Benefits Questionnaire, the examiner opined it is as likely as not that the Veteran’s hypertension could be a result of his exposure to Agent Orange during his one-year deployment. Based on this statement, with support from the NAS scientific and medical data pertaining to the health effects of Agent Orange exposure, resolving all reasonable doubt in favor of the Veteran, the Board finds that the medical evidence establishes a nexus between the Veteran’s hypertension and his exposure to herbicide agents, including Agent Orange. The Board finds that the criteria for service connection for the Veteran’s hypertension, as a result of herbicide agent exposure, including Agent Orange, have been met, and entitlement to service connection is warranted. The appeal is granted. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Middleton, Associate Counsel 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.