Citation Nr: 20068096 Decision Date: 10/21/20 Archive Date: 10/21/20 DOCKET NO. 09-42 337A DATE: October 21, 2020 ORDER Entitlement to service connection for hypertension, as due to in-service exposure to herbicide agents, is granted. FINDING OF FACT The evidence of record supports a finding that the Veteran’s hypertension is due to his in-service exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for hypertension, as due to in-service exposure to herbicide agents, has been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 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 in the Marine Corps from May 1963 to November 1967, with service in the Republic of Vietnam. He had additional periods of active duty in the Coast Guard Reserve from September 2001 to January 2002 and from March 2003 to July 2003. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2009 rating decision which, in pertinent part, denied service connection for hypertension. The Veteran testified at a hearing conducted by a Veterans Law Judge in February 2013. A transcript of the hearing has been associated with the Veteran’s claims file. The Veterans Law Judge who conducted the February 2013 hearing has since retired. Correspondence was sent to the Veteran in January 2018 inquiring whether he desired a new Board hearing in conjunction with this appeal. The Veteran subsequently indicated that he did not want to have another hearing. In January 2014 and March 2016, the Board remanded this appeal for further evidentiary development. Most recently, in July 2019, the Board denied the Veteran’s claim for service connection for hypertension, to include as due to exposure to herbicide agents, or as due to a service-connected disease or injury. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In April 2020, the Court granted a Joint Motion for Remand (Joint Motion) filed by counsel for both parties, which vacated the July 2019 Board decision and remanded the matter for readjudication in accordance with the Joint Motion. 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 military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service 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). Service connection may also be established on a secondary basis for a disability which is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). A veteran who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to herbicide agents. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). VA laws and regulations provide that, if a Veteran was exposed to herbicide agents during service, certain diseases are presumptively service connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). The listed diseases are: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes mellitus (adult-onset diabetes), Hodgkin’s disease, ischemic heart disease, chronic B-cell leukemias, multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, acute and subacute 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). In addition, the Secretary of VA has determined that there is no positive association between exposure to herbicide agents and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). Under Section 3 of the Agent Orange Act of 1991, Public Law No. 102-4, 105 Stat. 11, the Secretary of Veterans Affairs entered into an agreement with the National Academy of Sciences (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicide agents used in Vietnam and various diseases suspected to be associated with such exposure. The NAS was to determine, to the extent possible, whether there is a statistical association between the suspect disease and herbicide agent exposure, taking into account the strength of the scientific evidence and the appropriateness of the methods used to detect the association; the increased risk of disease among individuals exposed to herbicide agents during the service in the Republic of Vietnam during the Vietnam era; and whether there is a plausible biological mechanism or other evidence of a causal relationship between herbicide agent exposure and the suspect disease. At the Federal Government’s direction, the Institute of Medicine of the NAS issues a report every two years on the effects of Agent Orange and similar herbicide agents to various diagnoses. On November 15, 2018, the NAS issued “Veterans and Agent Orange: Update 11 (2018),” in which the NAS upgraded hypertension to the “sufficient” category from “limited or suggestive,” indicating that “there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide agent exposure based on the current data on hypertension and herbicide agents. As an initial matter, the Board notes that the Veteran’s service personnel records reflect that the Veteran served in Vietnam during the requisite timeframe. As such, the Veteran is presumed to have been exposed to herbicide agents during active duty, and the presumptions outlined in 38 C.F.R. § 3.309(e) are applicable. 38 C.F.R. § 3.307(a)(6)(iv). Of further import here is the fact that the RO had previously granted service connection for diabetes mellitus based upon the Veteran’s in-service exposure to herbicide agents. See February 2014 VA Rating Decision. Accordingly, the Veteran’s in-service exposure to herbicide agents is presumed. The Veteran argues that his hypertension is due to his in-service exposure to herbicide agents. To support his argument, the Veteran cites to the mandated NAS reports discussed above. Throughout this appeal, the Veteran has received two VA medical opinions in September 2017 and August 2018. The current NAS report at the time of both the September 2017 and the August 2018 opinions, “Veterans and Agent Orange: Update 2014 (2016),” concluded here was limited or suggestive evidence of an association between exposure to Agent Orange and hypertension. The September 2017 VA examiner opined that the Veteran’s hypertension is less likely than not caused by or related to herbicide agent exposure. The examiner recognized a National Institutes of Health (NIH) study that links Vietnam service and herbicide agent exposure to an increased risk of hypertension, but stated this is only limited and suggestive, not conclusive evidence. The examiner did not provide any further rationale for her opinion, nor did she address the publicly available 2016 NAS report. Rather, the examiner provided a list of multiple factors shown to cause hypertension but did not discuss if any of the listed factors actually applied to the Veteran. The August 2018 specialist also opined there is a less than 50% chance the Veteran’s hypertension is related to his service in Vietnam. While the specialist acknowledged the Veteran’s presumed herbicide agent exposure, he stated, “in my judgment any causative link between agent orange exposure and hypertension is very tenuous.” The specialist did not provide any further rationale, nor did he discuss the 2016 NAS report. Instead, he determined the Veteran’s hypertension was likely caused by common, well-known risk factors such as advancing age, obesity, physical inactivity, excessive salt intake, and family history. However, the specialist also did not discuss which, if any, of these risk factors actually apply to the Veteran. Unfortunately, both opinions failed to discuss adequately the implications of the 2016 NAS report and the Veteran’s herbicide agent exposure relative to his hypertension. In addition, both opinions failed to provide a detailed rationale to support their conclusions, including discussing which risk factors, if any, pertained to the Veteran. Thus, the Board finds both opinions to be inadequate. However, as noted above, since both opinions were rendered, a new NAS report has been released, upgrading the association from its previous classification of having “limited or suggestive” evidence to the category of “sufficient” evidence of an association between hypertension and herbicide agents. In light of this upgrade in category, the Board finds that a new VA examination is not necessary, as the claim can be adjudicated based on the current evidence of record. The medical evidence of record confirms that the Veteran has been diagnosed with, and is currently being treated for, hypertension. Hypertension is not listed in the applicable regulations as presumptively associated with exposure to certain herbicide agents. Thus, presumptive service connection is not warranted for this disability. However, based on the November 2018 NAS report concluding a positive association between hypertension and exposure to herbicide agents, the Board finds that the weight of the evidence is sufficient to show a medical nexus between the Veteran's hypertension and his in-service exposure to herbicide agents in Vietnam. As such, the Board finds that all elements of service connection have been met. Therefore, service connection for the Veteran’s hypertension can be awarded on a direct basis. Accordingly, the Board finds that the preponderance of the evidence supports a finding that the Veteran’s hypertension is related to his in-exposure to herbicide agents. Thus, service connection for hypertension on a direct basis (due to in-service exposure to herbicide agents) is warranted. In reaching this decision, the Board also notes that, it need not reach a decision on the issue of entitlement to service connection for hypertension on a secondary basis (as due to the service-connected diabetes mellitus). Direct service connection is the greater benefit (as compared to service connection for hypertension on a secondary basis). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Benson 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.