Citation Nr: 20007929 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 06-26 807 DATE: January 30, 2020 ORDER Service connection for hypertension is granted. An effective date of June 1, 2004 for a total rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for a heart disease is remanded. FINDINGS OF FACT 1. The Veteran was exposed to Agent Orange and herbicides during his service in the Republic of Vietnam. 2. The competent and probative evidence establishes that the Veteran’s hypertension is due to his exposure to Agent Orange and herbicides from his service in Vietnam. 3. From June 1, 2004 onward, the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310. 2. The criteria for entitlement to an effective date of June 1, 2004 for the grant of TDIU have been met. 28 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from January 1965 to April 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). This matter has frequently been before the Board with numerous remands and was most recently before the Board in July 2019 when it was remanded for additional development. This matter has now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Specifically, an examination was scheduled and performed. The Veteran testified on his claim for an earlier effective date for the assignment of a TDIU at a March 2009 hearing before the undersigned Veterans Law Judge (VLJ). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service incurrence for certain diseases, will be presumed on the basis of an association with certain herbicide agents (e.g., Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. § § 3.307 (a)(6), 3.309(e). Such a presumption, however, requires evidence of actual or presumed exposure to herbicides. Id. “Service in Vietnam” means actual service in the country of Vietnam from January 9, 1962 to May 7, 1975, and includes service in the waters offshore, or 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); See generally Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (finding that VA’s requirement that a veteran must have stepped foot on the landmass of Vietnam or the inland waters of Vietnam for agent orange/herbicide exposure presumption is a valid interpretation of the statute). In light of the foregoing, service connection may be presumed for residuals of Agent Orange exposure by showing two elements. First, the Veteran must show that he served in the Republic of Vietnam during the Vietnam era. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6). Second, the Veteran must be diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309 (e). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When 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 claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 5758 (1990). Agent Orange Exposure The Veteran asserts that he was exposed to Agent Orange and herbicides while he served in the U.S. Army. His service includes service from January 1965 to April 1968 with 11 months of foreign/sea service. His service personnel records show service in Vietnam. As such, the Veteran is presumed to have been exposed to herbicides consistent with such service. 38 U.S.C. § 1154(a). 1. Entitlement to service connection for hypertension. The Veteran asserts service connection for hypertension. The Board concludes that the Veteran has a current diagnosis of hypertension that is related to Agent Orange and herbicide exposure during service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). The Veteran has a current diagnosis of hypertension as shown in July 2014 examination. As such, the first element of service connection is met. The July 2014 VA examiner provided a negative opinion regarding whether the Veteran’s hypertension was proximately due to or the result of his service-connected PTSD. In support, the examiner stated that there is no peer-reviewed, evidence-based literature that describes PTSD as the cause of hypertension. The Board notes that this examination was previously found inadequate in 2019 as it did not discuss aggravation and whether his hypertension was caused by herbicide exposure. In the December 2019 examination, the examiner provided a positive nexus for the Veteran’s hypertension. In support, she explained that according to medical literature, the Veteran’s hypertension is more likely due to his exposure to herbicides during service. She cited a news article that reviewed health impacts between Agent Orange exposure and hypertension. The Board finds this opinion to have probative value. While it was somewhat conclusory as it relies on the news article, the Board notes that it is the only opinion that addresses hypertension based on herbicides exposure. As such, the Board finds the opinion to have some probative value. Moreover, the Board notes that the National Academy of Sciences (NAS) has found that there is “limited or suggestive evidence of an association between” hypertension and exposure to herbicide agents (such as Agent Orange) based on a recent statistical study. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20308 (Apr. 11, 2014); see also 38 U.S.C. § 1116 (b) (2012). The category “limited or suggestive evidence of an association” means that the “evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence.” Id. A more recent study by NAS released on November 15, 2018, indicates that “[t]he latest in a series of congressionally mandated biennial reviews of the evidence of health problems that may be linked to exposure to Agent Orange and other herbicides used during the Vietnam War found sufficient evidence of an association for hypertension.” NATIONAL ACADEMY OF SCIENCES, 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), available at: http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137. After review of the competent and probative evidence, the Board finds that service connection for hypertension is warranted. While hypertension is not currently on the list of diseases presumptively associated with herbicide exposure, service connection may still be established on a direct basis. The December 2019 examiner provided a positive nexus opinion based on exposure to Agent Orange. Additionally, the Board notes that there is no negative medical opinion addressing whether the Veteran’s hypertension is related to his exposure to Agent Orange and herbicides as the 2014 examiner only addressed whether the Veteran’s hypertension was proximately due to his PTSD. As such, the competent and probative evidence warrants finding that the Veteran’s hypertension is related to his exposure to Agent Orange and herbicides while in service. Therefore, service connection for hypertension is warranted. 38 C.F.R. § 3.303. Earlier Effective Date The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an evaluation and an award of pension, compensation, or dependency and indemnity compensation based on an original claim or a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date the claim arose, whichever is later. 38 C.F.R. § 3.400. Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if the formal claim has not been filed, an application form will be forwarded to the claim for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of the receipt of the formal claim. 38 C.F.R. § 3.155. For claims for an increase in a service-connected disability, if an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(1), (2); VAOPGCPREC 12-98. 2. Entitlement to an earlier effective date for the assignment of a total rating based on individual unemployability (TDIU). A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. Generally, to be eligible for TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In a September 2005 rating decision, the RO granted entitlement to a TDIU effective August 8, 2005. The effective date was based on the Veteran having met the schedular criteria for a TDIU as of that date based on his 70 percent rating for his PTSD; he had not been employed since 2000. Subsequent to that rating decision, the RO assigned an earlier effective date of June 1, 2004 for assignment of his 70 percent PTSD rating in a November 2011. As such, the Board finds that the Veteran now meets the criteria for a TDIU on a schedular basis for the rating period beginning June 1, 2004. See 38 C.F.R. § 4.16(a). As such an earlier effective date for the award of a TDIU is granted. REASONS FOR REMAND 1. Entitlement to service connection for a heart disability is remanded. The Veteran asserts service connection for a heart disability, to include as due to herbicides exposure. The Veteran’s July 2013 examination noted that he had a heart condition, but not ischemic heart disease. However, in a 2009 examination (for a separate disability), ischemic heart disease was reported. Additionally, his current medical records show that he takes disopyramide for maintaining his heart rhythm. In light of the contradictory medical records, the Board finds that a new examination is warranted to determine whether the Veteran has a heart disorder and whether it is related to service, to include herbicide exposure.   The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. Schedule the Veteran for an examination. The examiner is to provide a diagnosis which accounts for the Veteran’s present symptoms for his heart. Identify all heart pathology and diagnoses. Then, address whether (a) it is at least as likely as not that the Veteran’s heart disability was caused by a disease or injury in service, to include herbicide exposure; and (b) if it is at least as likely as not that the Veteran’s heart disability was either 1) proximately due to OR 2) aggravated by any service-connected disability. (Continued on the next page)   A comprehensive rationale for the provide opinion must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Garrett Morales, 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.