Citation Nr: 20042571 Decision Date: 06/24/20 Archive Date: 06/24/20 DOCKET NO. 05-31 252 DATE: June 24, 2020 ORDER Entitlement to service connection for hypertension is granted. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran’s hypertension was caused by exposure to herbicide agents during active duty service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for hypertension have been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1969 to June 1971, to include in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In a May 2008 decision issued by a Veterans Law Judge other than the undersigned, the Board denied service connection for hypertension. The Veteran appealed the May 2008 Board decision to the United States Court of Appeals for Veterans Claims (CAVC). In a subsequent August 2009 order, which incorporated the parties August 2009 Joint Motion for Remand (JMR), the Court vacated and remanded the May 2008 Board decision. In November 2011 and July 2017, the Board remanded the matter for additional development. Beyond the above, it is valuable to note that the Veteran has already been found to be 100 percent disabled by VA and is receiving a 100 percent disability. Entitlement to service connection for hypertension. The Veteran contends in part that his hypertension was caused by his exposure to herbicide agents, including Agent Orange, during his service in the Republic of Vietnam. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.03. Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). VA laws and regulations provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). Certain chronic diseases associated with exposure to certain herbicide agents will be service connected on a presumptive basis. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). The list of diseases associated with exposure to certain herbicide agents is as follows: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The medical evidence of record, including a September 2019 VA examination report, shows the Veteran currently has hypertension. His service personnel records show he served in the Republic of Vietnam from January 1970 to June 1971, and he is therefore presumed to have been exposed to herbicide agents in service. Therefore, the sole question for the Board to consider is whether there is medical evidence of a nexus between his exposure to herbicide agents and his hypertension. Hypertension is not one of the specifically enumerated diseases that are service connected on a presumptive basis due to herbicide agent exposure. 38 C.F.R. § 3.309(e). Therefore, the Board finds that the laws and regulations governing service connection on a presumptive bases for herbicide-related diseases do not apply in this case. However, entitlement to service connection for hypertension can nonetheless be established on the basis that such disease resulted from exposure to herbicide agents if affirmative evidence shows such causation. 38 C.F.R. § 3.303(d). The Board has reviewed the record and finds that there is evidence both for and against the claim. The evidence against the claim includes a March 2020 VA examiner’s opinion that the Veteran’s hypertension is less likely as not incurred in or caused by his military service. The examiner reasoned that hypertension is not among the diseases granted on a presumptive basis due to Agent Orange exposure and that it was diagnosed in July 2003, or 32 years after the Veteran’s separation from active duty service. The evidence in favor of the claim includes two opinions from the Veteran’s treating cardiologist. In a September 2005 letter, the private physician opined the Veteran’s hypertension was probably caused by multiple environmental and medical factors, but then noted he had a history of arterial hypertension secondary to exposure toxic agents. In an August 2018 treatment note that was received in January 2019, the same physician appears to note hypertension is among the Veteran’s conditions that he believes are related to Agent Orange exposure. The Board finds the evidence in favor of the claim and the evidence against the claim is of equal weight. Notably, the VA examiner did not address a 2012 National Academy of Sciences report that found there was a possible association between hypertension and exposure to herbicides as directed in July 2017 Board remand. Accordingly, the Board finds the March 2020 VA opinion is of limited probative value. The Board recognizes that the private physician did not provide a rationale for his opinions, but notes that in an updated report released in 2018, Veterans & Agent Orange: Update 11 (2018), the National Academy of Sciences found “sufficient evidence” of an association between hypertension and exposure to herbicide agents such as Agent Orange. This publication upgrades hypertension’s previous classification in the category of “limited or suggestive” evidence of an association to the category of “sufficient” evidence of an association. According to the National Academy of Sciences, the sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and herbicide exposure. Accordingly, while the private physician’s opinions are of limited probative value when considered alone, they are supported by relevant medical literature and, therefore, probative. As previously noted, the presumptive service connection regulations do not apply in the Veteran’s case and the Board is in no way implying that service connection is warranted on a presumptive basis here, but the National Academy of Sciences 2018 report is worthy of reference because it supports the probative value of the private physician’s opinion. The Board must also consider that the Veteran is already at 100% and that a remand needs to be avoided. As result, the decision should not be considered a suggestion that the Board is expanding the presumption of service connection because it is not. The Board must therefore resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, service connection for hypertension is warranted. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William A. Skowronski, 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.