Citation Nr: 20007775 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 17-45 126 DATE: January 30, 2020 REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for chronic myelomonocytic leukemia (CMML) is remanded. REASONS FOR REMAND The Veteran had active duty service from October 1970 to September 1974 and from June 1979 to August 1995. He died in June 2018; the appellant, as the surviving spouse, has been substituted for the Veteran. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected, even though there is no record of such disease during service. 38 C.F.R. §§ 3.307(a), 3.309(e). 1. Entitlement to service connection for hypertension Prior to his death, the Veteran contended that his hypertension was caused by his in-service exposure to Agent Orange. Exposure to Agent Orange has been conceded by virtue of his service at the Royal Thai Air Force Base (RTAFB) in Ubon, Thailand and his proximity to the perimeter fence line on a daily basis. The National Academy of Sciences (NAS) has previously stated the conclusion that there is limited or suggestive evidence of an association between exposure to Agent Orange and hypertension. A finding of limited or suggestive evidence means that epidemiologic research results suggest an association between exposure to herbicides and a particular outcome, but a firm conclusion is limited because chance, bias, and confounding factors could not be ruled out with confidence. See 75 Fed. Reg. 81332, 81333 (Dec. 27, 2010). Most recently, hypertension was moved to the category of “sufficient” evidence of an association from its previous classification in the “limited or suggestive” category. The sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association. See NAS, Institute of Medicine, Veterans & Agent Orange: Update 11 (2018). Thus, the Board cannot make a fully-informed decision on the issue because no VA examiner has opined whether the Veteran’s hypertension is at least as likely as not related to conceded Agent Orange exposure. 2. Entitlement to service connection for CMML Prior to his death, the Veteran contended that his CMML was caused by his in-service exposure to Agent Orange. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia) shall be service-connected, even though there is no record of such disease during service. 38 C.F.R. § 3.309(e). As noted above, exposure to Agent Orange has been conceded by virtue of his service at RTAFB in Ubon, Thailand and his proximity to the perimeter fence line on a daily basis. In March 2018, a VA physiatrist provided an opinion that there was no evidence of a hairy cell or B-cell leukemia and explained that CMML fell under the diagnosis of myeloproliferative disorders (i.e., preleukemia) and was not a B-cell leukemia. Unfortunately, an opinion as to whether the Veteran’s CMML was in any way related to his exposure to Agent Orange was not provided. Thus, the Board cannot make a fully-informed decision on the issue because no VA examiner has opined whether the Veteran’s CMML is at least as likely as not related to conceded Agent Orange exposure. The matters are REMANDED for the following action: Refer the case to a VA clinician for a supplemental medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that (i) hypertension and (ii) CMML are related to exposure to an herbicide agent during service. The clinician is advised that the sole basis of a negative opinion cannot be that hypertension and CMML are not on the list of diseases subject to presumptive service connection based on exposure to herbicide agents. In addressing the question with respect to hypertension, the clinician should consider and address the National Academy of Science’s Agent Orange: Update 11 (2018), which upgrades hypertension from the category of “limited or suggestive” evidence of an association with herbicide exposure to the category of “sufficient” evidence; and whether the Veteran has other risk factors that are more likely the cause of hypertension given his complete medical history. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. P.M. DILORENZO 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.