Citation Nr: 20043723 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 20-09 584 DATE: June 29, 2020 ORDER Entitlement to service connection for hypertension is granted. REMANDED Entitlement to service connection for a heart disability, to include hypertensive heart disease, atrial fibrillation/atrial flutter, pacemaker implant, and low pulse rate, is remanded. FINDING OF FACT The Veteran’s hypertension is related to his exposure to herbicides in service. CONCLUSION OF LAW The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from October 1966 to November 1971. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for hypertension. 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; 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. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b). The Veteran seeks service connection for hypertension contending that his condition was caused by his exposure to Agent Orange. After review of the record, the Board finds that service connection is warranted. Initially, the Board notes that VA regulations provide that a veteran who, during active military service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to herbicide agents, including the herbicide commonly referred to as Agent Orange. 38 U.S.C. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309. The record shows that the Veteran served in the Republic of Vietnam during the applicable time period. Therefore, he is presumed to have been exposed to Agent Orange. Additionally, if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected and are outlined in 38 C.F.R. § 3.309(e). 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.309(e). While the record shows the Veteran has a current diagnosis for hypertension, the Board notes that 38 C.F.R. § 3.309(e) does not include hypertension as a disease covered by the provision. Thus, service connection on a presumptive basis cannot be awarded. However, service connection can still be established on a direct basis if there is evidence of a nexus between the Veteran’s hypertension and his herbicide exposure during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). With regard to a nexus, on November 15, 2018, the National Academies of Sciences, Engineering, and Medicine moved hypertension to the category of “sufficient” evidence of an association from its previous classification in the “limited or suggestive” category,” indicating that there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and exposure to herbicides, including Agent Orange. See Hypertension Upgraded in Latest Biennial Review of Research on Health Problems in Veterans That May Be Linked to Agent Orange Exposure During Vietnam War (Nov. 15, 2018), http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137 (last visited Nov. 20, 2018). Based on this new finding, the Board finds that there is sufficient scientific evidence to etiologically link the Veteran’s hypertension to his presumed exposure to herbicides while serving in Vietnam. As such, the Board has found that all elements of service connection for hypertension are met, and service connection is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a heart disability, to include hypertensive heart disease, atrial fibrillation/atrial flutter, pacemaker implant, and low pulse rate. The Veteran contends that the above conditions were caused by his exposure to Agent Orange. Initially, the Board notes that the Veteran filed separate claims for each asserted disability; however, given that each disability relates to his heart, the Board has expanded and recharacterized the Veteran’s claim pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). In a July 2018 written correspondence, the Veteran reported that in August 2010, he was found to have an atrial flutter and an abnormally low pulse rate which resulted in the implant of a pacemaker. A review of the record shows that the Veteran submitted private treatment records that confirm the Veteran was noted to have atrial fibrillation/flutter in May 2010, and profound sinus bradycardia with a pacemaker implant in August 2010. Additionally, records show a hypertensive response during previous stress tests. Given these findings and the Veteran’s presumed Agent Orange exposure, the Board finds VA’s duty to assist has been triggered. Thus, a VA examination is warranted to determine the nature and etiology of his heart disability. The Board also observes that the records submitted by the Veteran appear to be incomplete and no attempts have been made by VA to retrieve these records. As such, VA should attempt to retrieve the Veteran’s complete private treatment records to satisfy VA’s duty to assist. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the Veteran’s claims folder. 2. The AOJ should undertake appropriate development to obtain any outstanding private treatment records related to the Veteran’s heart disability. The Veteran’s assistance should be requested as needed. All obtained records should be associated with the evidentiary record. If the AOJ cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his heart disability, to include hypertensive heart disease, atrial fibrillation/atrial flutter, pacemaker implant, and low pulse rate. The claims file must be made available to and must be reviewed by the examiner. a) The examiner should first identify all heart disabilities of record. b) Then, provide an opinion as to whether any identified heart disability is at least as likely as not (50 percent probability or greater) related to the Veteran’s active duty service, to include Agent Orange exposure. c) The examiner should provide an opinion as to whether any identified heart disability was proximately caused or aggravated by the Veteran’s service-connected hypertension. The examiner should provide a complete rationale for any opinions expressed. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. 4. After the above development is completed, the claim should be re-adjudicated. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Laffitte, 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.