Citation Nr: 20070577 Decision Date: 10/30/20 Archive Date: 10/30/20 DOCKET NO. 16-00 994 DATE: October 30, 2020 ORDER Entitlement to service connection for hypertension due to exposure to herbicide agents (Agent Orange) is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's hypertension is related to service, to include herbicide agent exposure. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1116, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1966 to April 1969, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 Regional Office (RO) rating decision. In July 2018, the Veteran testified at a RO hearing. In June 2019, the Veteran testified at a Board hearing at his local RO before the undersigned Veterans Law Judge. Transcripts of both hearings are of record. In October 2019, the Board remanded the claim for additional development. The development has been completed, and the case has returned to the Board. Service connection for hypertension Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As relevant, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, including Agent Orange, unless there is affirmative evidence to establish that such veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide agent exposure. See also 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). VA regulations define hypertension as diastolic blood pressure as predominantly 90mm. or greater, and isolated systolic hypertension as systolic blood pressure predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm, and also provide that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. Multiple blood pressure readings to be taken over multiple days as specified in Note (1) of DC 7101 applies only to confirming the existence of hypertension. Gill v. Shinseki, 26 Vet. App. 386, 391 (2013). The Board also notes that in November 2018, the National Academy of Sciences, Engineering and Medicine (NAS) moved hypertension to the category of "sufficient" evidence of an association from its previous classification in the "limited or suggestive" category. NAS, Veterans and Agent Orange: Update 11 (2018). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service treatment records (STRs) do not show any complaints or assessment concerning elevated blood pressure or hypertension. March 1969 separation physical examination included a blood pressure reading of 122/86. The Veteran’s Form DD 214 appears to list the Veteran’s military occupational specialty (MOS) as electronic radio repair. In his August 2010 claim, the Veteran reported that he was first diagnosed with hypertension in 1990. He believed it was attributable to Agent Orange exposure in Vietnam. In his February 2013 notice of disagreement (NOD), the Veteran reported that his private physician believed Agent Orange exposure may have contributed to the development of hypertension. At the July 2018 RO hearing, the Veteran reported that his cardiologist informed him that Agent Orange exposure may be related to his hypertension. The Veteran believed Agent Orange exposure was a factor because he also had an unexplained body temperature regulation problem and his hypertension was unexplained. He did not monitor his blood pressure for many years following service and to his recollection started taking hypertensive medication around 1998. At the June 2019 Board hearing, the Veteran reported that he had taken blood pressure medication for many years. He had vagal syndrome as an interrelated problem, described increasing body temperature with low blood pressure episodes. When this occurred, he sought immediate medical attention. His treating physician was unsure why this happened. The Veteran could not recall when he first developed hypertension but stated that he had taken hypertension medication for many years. From service, he recalled dizziness associated with heat. He had visited a new private cardiologist who was unfamiliar with Agent Orange and was unsure about it as a possible cause for hypertension. In June 2020, a VA-contract physician completed a Hypertension Disability Benefits Questionnaire (DBQ). The physician diagnosed hypertension with a 2010 onset from VA treatment records. It was currently controlled with medication. He noted recent blood pressure readings from April 2019 and October 2019. In an accompanying report, he furnished a positive medical opinion. He cited the November 2018 NAS study placing hypertension in the sufficient evidence of an association category with herbicide agent exposure. He commented that the new sufficient evidence of an association category placement reflected that there was enough epidemiologic evidence to find a positive association. In an August 2020 addendum, the VA-contract physician issued a negative medical opinion. He again reviewed the claims folder. He reported the June 2020 medical opinion was in error and his current opinion was negative. He stated that the recent study about an association concerned Veterans who were in the Chemical Corps and had a high exposure to herbicide agents. There was no association for Veterans with other military occupational specialties (MOS). He stated that the prospect of herbicide agent exposure (Tetrachlorodibenzodioxin / TCDD) for ground troops in Vietnam appeared unlikely from environmental dissipation, little bioavailability, herbicide properties and circumstances of application. He cited photochemical degradation and limited bioavailability of residual herbicide in soil or vegetation suggesting that dioxin concentrations in Vietnam ground troops Veterans was small even if they were in recently treated areas. He reported that appreciable accumulation of herbicide agents required repeated long-term direct skin contact and would not be found in cases of incidental exposure under field conditions where Agent Orange had been sprayed. He also noted a study finding that 90 percent of people age 55 or better would eventually develop hypertension. For the following reasons, the Board finds that service connection for hypertension is warranted. The disputed issue is whether there is a relationship to service for hypertension, to include presumed exposure to herbicide agents. The Board has considered the Veteran’s reports about a relationship to service. He does not report symptoms starting in service but rather asserts a relationship to presumed herbicide agent exposure. He is competent to report about his medical history, to include reports given to him from treating clinicians, observable symptoms and the circumstances of his service. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007); 38 U.S.C. § 1154(a). However, the issue of a relationship to herbicide agent exposure for current hypertension is a complex medical question. This is because of the internal medical processes involved between chemical exposure and hypertension manifesting years after exposure. Thus, the relationship question extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau, supra. Competent medical evidence is required to establish a relationship to service for the post service hypertension. 38 C.F.R. § 3.159(a)(1). Because the Veteran is not competent to report as a medical expert, his statements as to a relationship between hypertension and service are not competent. Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). The competent evidence includes the Veteran’s report that his prior cardiologist suggested a possible relationship between Agent Orange exposure and hypertension, as well as the June 2020 VA-contract medical opinion with August 2020 addendum. The Veteran’s report from the July 2018 RO hearing that his prior treating cardiologist suggested a possible relationship is competent because it originates from a cardiologist. The report is limited by the vagueness of exactly how the cardiologist characterized the relationship and absence of explanation for why he made the comment. However, the Veteran’s report is clear that a treating cardiologist suggested a relationship, and it supports a relationship. It is entitled to some probative weight. The Board has considered the June 2020 VA-contract medical opinion. It reflected that the sufficient evidence of an association categorization for hypertension and herbicide agent exposure from the November 2018 NAS report was sufficient to warrant a positive determination. It was based upon a review of the claims folder, including the Veteran’s reported history. Thus, the June 2020 VA-contract medical opinion is entitled to some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Then, there is the August 2020 VA-contract addendum for consideration. The physician rescinded his June 2020 medical opinion and updated it with a negative medical opinion. He reasoned that the November 2018 NAS study only applied to Veterans with direct herbicide agent exposure risk and not to general ground troops in Vietnam that likely only had incidental herbicide agent exposure, such as the Veteran. He also noted the general prevalence of hypertension in populations greater than 55 years old. The August 2020 VA-contract addendum is also entitled to probative weight since it includes a detailed rationale supporting its conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Board finds that the evidence concerning a relationship between presumed herbicide agent exposure and hypertension is in a state of relative equipoise. The cardiologist’s report to the Veteran implies that a positive relationship had been suspected or considered possible by physicians for some time. The November 2018 NAS study provides definitive medical support for a relationship. Then, the June 2020 VA-contract medical opinion indicates that a general review of the Veteran’s history would support a relationship based upon the November 2018 NAS report. Although the August 2020 VA-contract physician provided reasons to distinguish the favorable November 2018 NAS from this particular case, the above supporting reports cannot be completely discounted or overlooked. In sum, given the above facts and circumstances of this case, the evidence is at least evenly balanced as to whether the Veteran's hypertension is related to service, including presumed herbicide agent exposure. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for hypertension is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. D. Simpson, 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.