Citation Nr: 20005795 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 16-06 731 DATE: January 23, 2020 ORDER Entitlement to service connection for stroke, or cerebrovascular disease, to include as due to herbicide exposure is granted. REMANDED Entitlement to service connection for hypertension is remanded. FINDING OF FACT The Veteran’s stroke is related to exposure to herbicide agents during active duty service. CONCLUSION OF LAW The criteria for service connection for stroke have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1969 to April 1972. This matter comes before the Board of Veterans Appeals (Board) on appeal from a October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. Entitlement to service connection for stroke Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a). 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). The Vietnam era is the period beginning on February 28, 1961 and ending on May 7, 1975 for veterans who served in the Republic of Vietnam, and the period beginning on February 28, 1961 and ending on May 7, 1975, in all other cases. 38 U.S.C. § 101(29)(A). Service in the Republic of Vietnam is “service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.” 38 C.F.R. § 3.307(a)(6)(iii). Furthermore, a veteran who, during active military, naval, or air service, served between April 1, 1968 and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the demilitarized zone (DMZ) of Korea in an area in which herbicides are known to have been applied during that period, 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)(iv). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). The enumerated diseases which are deemed to be associated with herbicide exposure do not include any cerebrovascular diseases. 38 C.F.R. § 3.309 (e). Evidence which may be considered in rebuttal of that presumption is any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. The expression “affirmative evidence to the contrary” will not be taken to require a conclusive showing, but such showing as would, in sound medical reasoning and in the consideration of all evidence of record, support a conclusion that the disease was not incurred in service. 38 C.F.R. § 3.307 (d); 38 C.F.R. § 3.309 (e). Regardless of whether a claimed disability is recognized under 38 U.S.C. § 1116, pertaining to herbicide agent exposure presumptive diseases, a claimant is not precluded from presenting evidence that a claimed disability was due to or the result of herbicide exposure. Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994). The Veteran alleges that his stroke condition is related to service, to include as due to herbicide exposure. See VA Form 21-4138 Statement in Support of Claim, received April 2014. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Government treatment records show the Veteran suffered a stroke in 2005. See Medical Treatment Record – Government Facility, received February 2010. Second, the Board finds that there is in-service exposure to herbicide exposure, but no diagnosis of cerebrovascular disease during service or within one year of separation from service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran first suffered a stroke with residual speech language impairment in 2005. The Veteran’s military personnel records show he was assigned to the 1st Battalion, 72nd Armor regiment from May 1971 to April 1972. The Department of Defense has identified this unit as one that operated in the Korean DMZ during the applicable period. Therefore, exposure to herbicides during service is presumed. However, cerebrovascular disease is not an enumerated presumptive disease. See 38 C.F.R. § 3.309 (e). Thus, the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 are not applicable. Third, the Board finds that the evidence of record does support a finding that the Veteran’s stroke is related to active service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran’s medical records reflect he first had a cerebrovascular accident in June 2005. In June 2005 the Veteran’s physician recorded that it is at least as likely that the Veteran’s cerebrovascular disease is related to his Agent Orange exposure. In December 2013, another physician reported that it is very plausible that the Veteran’s very significant early cerebrovascular disease is related to Agent Orange exposure. See Medical Treatment Record – Government Facility, received May 2014. The Veteran was afforded a VA examination in October 2016. The examiner provided a positive nexus opinion between the Veteran’s cerebrovascular disease or stroke and herbicide exposure during active duty service. The rationale provided by the examiner cited studies showing an increase in stroke and carotid disease in veterans who served in the Korean DMZ and were exposed to herbicides. After a review of the record, the Board finds that evidence demonstrates the Veteran’s cerebrovascular disease is etiologically related to active duty service, including exposure to herbicide agents. Accordingly, service connection for stroke to include as due to herbicide exposure is granted. REASONS FOR REMAND Entitlement to service connection for hypertension is remanded. The Veteran contends his hypertension is due to his active duty service, to include herbicide exposure. A Statement of the Case (SOC) denying the claim was issued in January 2016. The SOC referenced the National Academy of Sciences (NAS) Veterans and Agent Orange reports from 2008 in its argument. However, In November 2018, the NAS moved hypertension from the “limited or suggestive” to “sufficient” category for association with herbicides. Veterans and Agent Orange: Update 11 (2018). Additionally, VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159. VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, government treatment records show the Veteran has a diagnosis of hypertension. As previously noted, due to the Veteran’s service in the Korean DMZ, herbicide exposure is conceded. Additionally, the Veteran’s medical records seem to link his present disability to his herbicide exposure. See Medical Treatment Record – Government Facility, received May 2014. However, the Board finds that the threshold set by McLendon has been met and that an opinion should be sought on remand to address the Veteran’s claim as there is evidence of currently diagnosed disabilities, an in-service event, and an indication that the current disabilities may be associated with the in-service event. Therefore, remand for a VA examination is required. The matters are REMANDED for the following action: 1. Provide the Veteran with an appropriate examination to determine the etiology of his hypertension. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (Continued on the next page)   The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the hypertension had onset in, or is otherwise related to, active military service, to include the Veteran’s presumed in-service exposure to herbicide agents. In providing a response, the examiner is asked to consider and comment on the November 2018 NAS study that moved hypertension from the “limited or suggestive” to “sufficient” category for association with herbicides. The examiner is also requested to consider such in the context of the Veteran’s particular clinical history. Rachel Erdheim Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Javed, 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.