Citation Nr: 20040078 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 17-44 358 DATE: June 11, 2020 ORDER New and material evidence has been received to reopen the previously denied claim of service connection for diabetes mellitus, type II. New and material evidence has been received to reopen the previously denied claim of service connection for hypertension. New and material evidence has been received to reopen the previously denied claim of service connection for erectile dysfunction. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder, is granted. Entitlement to service connection for diabetes mellitus, type II, is granted. REMANDED Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus, type II, is remanded. FINDINGS OF FACT 1. A June 2009 rating decision, to which the Veteran was notified the following month, denied service connection for hypertension, diabetes mellitus, and erectile dysfunction; the Veteran did not perfect a timely appeal with respect to the June 2009 rating decision and no pertinent exception to finality applies. 2. The evidence received since the June 2009 rating decision is not cumulative or redundant and raises a reasonable possibility of substantiating the Veteran’s previously denied claims of service connection for hypertension, diabetes mellitus, and erectile dysfunction. 3. Resolving all reasonable doubts in the Veteran’s favor, the Veteran has an acquired psychiatric disorder, to include PTSD and major depressive disorder, that is related to service. 4. Resolving all reasonable doubts in the Veteran’s favor, his diabetes mellitus, type II, is presumed related to exposure to herbicide agents while in service. CONCLUSIONS OF LAW 1. The June 2009 rating decision that denied service connection for hypertension, diabetes mellitus, and erectile dysfunction is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.1103. 2. New and material evidence has been received to reopen the previously denied claims of service connection for hypertension, diabetes mellitus, and erectile dysfunction. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. 3. Resolving all reasonable doubts in the Veteran’s favor, the criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, have been met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. Resolving all reasonable doubts in the Veteran’s favor, the criteria for presumptive service connection for diabetes mellitus, type II, 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 FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1970 to September 1974. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2008 and April 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the Veteran’s claims file. As an initial matter, the Board notes that in September 2007, VA received the Veteran’s formal claim for service connection for PTSD contending that prior to serving aboard the USS Hancock, he was sent to Da Nang, Vietnam and experienced firefights while working with resupply Marine detachments on the river. See September 2007 VA Form 21-526. His military personnel records reflect that the Veteran reported to the USS Hancock on July 11, 1972. Thereafter, in an April 2008 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for PTSD, in part, because the Veteran’s claimed stressors could not be verified. Prior to the expiration of the appeal period for the April 2008 rating decision, VA made a United States Armed Forces Service Center for Unit Records Research (CURR) request via Personnel Information Exchange System (PIES) for verification of exposure to Agent Orange while the Veteran was serving aboard the USS Hancock. A March 2009 response from Defense Personnel Records Image Retrieval System (DPRIS) noted that the history shows that the USS Hancock conducted Special Operations periods from Yankee Station in the northern Gulf of Tonkin to include from June 16, 1972 to July 14, 1972. See March 2009 VA 21-3101 Request for Information. The Board finds that this evidence is new as it was not of record prior to the April 2008 rating decision and material as it relates to the Veteran’s stressors involving being in Vietnam and working in supply operations associated with his time immediately prior to reporting on the USS Hancock. The Board notes that where new and material evidence is received within one year after the initial denial, the denial is not final, and the claim remains pending. 38 C.F.R. § 3.156(b). In October 2013, the Veteran submitted a statement that his PTSD was due to Vietnam war-time service and explained how he arrived onto the USS Hancock in the Gulf of Tonkin after being in Da Nang. See October 2013 Statement in Support of Claim. The April 2015 rating decision declined to (re)open the Veteran’s PTSD claim by finding that new and material evidence had not been received. However, because new and material evidence was received within the April 2008 rating decision appeal period, that decision is not final. Accordingly, the Board will consider the claim of service connection for PTSD de novo. New and Material Evidence Rating actions are final, and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a NOD with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). If new and material evidence is received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a statement of the case), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156. Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of last final decision and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” 1. New and material evidence has been received to reopen the previously denied claims of entitlement to service connection for hypertension, diabetes mellitus, type II, and erectile dysfunction In the present case, the AOJ initially denied the Veteran’s claims for service connection for hypertension, diabetes mellitus, and erectile dysfunction in a June 2009 rating decision after determining that the evidence failed to show exposure to Agent Orange or on the ground service in Vietnam. The Veteran did not perfect a timely appeal with respect to the June 2009 rating decision and no other pertinent exception to finality applies. Thus, the June 2009 rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104 (a), 20.1103. Evidence received since the June 2009 rating decision includes VA treatment records, VA examinations, and lay statements, including Board testimony. Specifically, the Veteran provided more detailed accounts of his claimed service in Vietnam. In this regard, he asserted that he traveled from the Philippines via a transport ship to Da Nang in approximately June 1972 to early July 1972 where he was assigned to a work party involving loading/unloading supplies. See February 2015 Statement in Support of Claim. He asserted that while he was in Da Nang, he volunteered to assist in taking supplies to fire patrol bases upriver and believes he was on the USS Schenectady. See March 2020 Board hearing transcript, pp. 8-9. The Veteran further testified that he went aboard another ship, which may have been the USS St. Louis, and from there flew via helicopter to the USS Hancock. Id. at pp. 10-14. He also provided evidence that he was exposed to Agent Orange/herbicides through the water and that the USS Hancock received food from Vietnam. See July 2014 Correspondence. In this regard, the Veteran further submitted a report to the Australian Department of Veterans Affairs entitled Examination of the Potential Exposure of Royal Australian Navy (RAN) Personnel to Polychlorinated Dibenzodioxins and Polychlorinated Dibenzofurans Via Drinking Water, which addresses whether significant quantities of potentially harmful chemicals may have co-distilled into drinking water in the ships which transported Australian Troops during the Vietnam conflict. The Veteran also testified that he was considered potentially diabetic in the 1970s and that he was diagnosed with hypertension following his diabetes mellitus diagnosis. See March 2020 Board hearing transcript, pp. 20-22. This above evidence is new as it was not of record in June 2009 and material as it relates to the unestablished fact of whether the Veteran was exposed to Agent Orange/herbicides during service and if the Veteran’s service included service in Vietnam. Accordingly, the Board finds that new and material evidence has been received to reopen the previously denied claims of service connection for hypertension, diabetes mellitus, type II, and erectile dysfunction. Service Connection Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 C.F.R. § 3.303. To that end, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active duty service. 38 C.F.R. § 3.303(d). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in- service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder As an initial matter, the Board notes that because the evidence of record reflects additional diagnoses relating to the Veteran’s psychiatric disorders, the Board has characterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In addition to the general requirements for service connection, establishing service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a); credible supporting evidence that the claimed in-service stressor occurred; and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. See 38 C.F.R. §§ 3.304(f); 4.125. If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. “Fear of hostile military or terrorist activity” means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f). In the present case, the Veteran claims that he has an acquired psychiatric disorder that is related to incidents of service. Specifically, he asserts that while he took supplies from Da Nang upriver, he experienced shots fired and he witnessed a dismembered American pilot. See March 2020 Board hearing transcript, pp. 6-8. The Veteran also asserts that while he was in the Philippines, prior to reporting to the USS Hancock, he witnessed a uniform man shoot another individual. See April 2015 Statement in Support of Claim. The Veteran additionally contends that his acquired psychiatric disorder is related to the constant harassment that he experienced on the USS Hancock and during his time in the Navy from fellow servicemembers. See March 2020 Board hearing transcript p. 28; February 2015 Statement in Support of Claim for PTSD. The Board finds, after careful review of the relevant evidence and resolving all reasonable doubt in the Veteran’s favor, that service connection is warranted for an acquired psychiatric disorder, to include PTSD and major depressive disorder. First, the Veteran has a current diagnosis of PTSD and recurrent major depressive disorder. See May 2014 VA examination. Therefore, the question at issue is whether the Veteran’s current diagnoses are related to service, to include any claimed in-service stressors. Review of the Veteran’s service personnel records, including his Certificate of Release or Discharge from Active Duty (DD-214), confirm that his primary military occupational specialty (MOS) was a service and supply handler and that he is in receipt of a Vietnam Service Medal as well as a Vietnam Campaign Medal. The records also reflect that the Veteran was transferred to the USS Hancock on June 2, 1972 and reported aboard the USS Hancock on July 11, 1972. Furthermore, the USS Hancock was in the official waters of the Republic of Vietnam from July 11, 1972 to July 14, 1972; July 24, 1972 to August 17, 1972; and from August 27, 1972 to September 14, 1972. See January 2015 Military Personnel Record. As noted above, a DPRIS response reflects that the USS Hancock conducted Special Operations periods on Yankee Station in the northern Gulf of Tonkin, to include from June 16, 1972 to July 14, 1972; July 24, 1972 to August 17, 1972; and from August 27, 1972 to September 14, 1972. See March 2009 Request for Information. The USS Hancock also conducted ports of call in Subic Bay, Philippines. Id. The DPRIS response further reflects that according to the National Archives and Records Administration (NARA), College Park, Maryland and the Naval Historical Center, Washington DC, command histories, deck logs and muster rolls/personnel diaries are the only administrative records produced by commissioned U.S. Navy ships during the Vietnam war that are permanently retained and that these records do not normally annotate individuals arriving or going ashore on a routine basis. Specifically, the deck logs may indicate aircraft or boats arriving/departing but do not list passengers by name unless that individual is a very important person (VIP) or high-ranking officer while logbooks maintained aboard river boats or launches were not considered permanent records. Id. In May 2014, the Veteran was afforded a VA PTSD examination. The VA examiner diagnosed the Veteran with chronic PTSD under the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) and recurrent major depressive disorder. The VA examiner found that both diagnoses are directly related to the Veteran’s military service and negative homecoming environment post-military. In this regard, the examiner noted that when the Veteran separated from service, he reported that he was very depressed and struggled with nightmares, anxiety, intrusive memories, and social withdrawal. During the examination, the Veteran also reported that he felt that he was frequently a target of bullying due to his short height and “being mouthy.” The VA examiner additionally determined that the Veteran’s reported in-service stressors of witnessing a man shooting another individual, being shot at, and witnessing a pilot being shot and having a friend witness the pilot dismembered while in service were all related to the Veteran’s fear of hostile military or terrorist activity and contributed to his mental health diagnoses and current psychological symptoms. The Board finds that the VA examiner’s opinion is of significant probative value on the question of whether the Veteran’s acquired psychiatric disorder, to include PTSD and major depressive disorder, is as least as likely as not related to his service as the examiner reviewed the Veteran’s claims file and detailed the Veteran’s history and symptoms as related to his claimed in-service stressors. The Board recognizes that the AOJ has been unable to verify that the Veteran experienced his claimed in-service stressor of firefights/shots being fired while taking supplies upriver in Vietnam prior to serving aboard the USS Hancock or that the Veteran served on the ground in Vietnam. See June 2017 Statement of the Case. Although the Veteran reported that he believed he may have been on the USS Schenectady prior to serving on the USS Hancock, a June 2017 DPRIS response indicates that the 1972 command history and deck logs do not record the name of the Veteran. However, the Board reiterates that the March 2009 DPRIS response indicated that the command histories, deck logs, and muster rolls/personnel diaries records produced by commissioned U.S. Navy ships during the Vietnam war do not normally annotate individuals arriving or going ashore on a routine basis and may not list passengers by name unless that individual is a very important person (VIP) or high-ranking officer. Based on this evidence, the Board notes that the absence of the Veteran’s name recorded on a ship’s 1972 command history and deck logs does not necessarily reflect that the Veteran did not serve aboard that ship. Moreover, the significant finding from the May 2014 VA examiner was that the Veteran experienced fear of hostile miliary activity as it related to his reported stressors of being in Vietnam immediately prior to reporting to the USS Hancock. The Board finds that this stressor is corroborated by application of the provisions under 38 C.F.R. § 3.304(f)(3). In this regard, the Veteran’s personnel records document that he was transferred to the USS Hancock on June 2, 1972 but reported aboard the USS Hancock on July 11, 1972. As the records reflect that the USS Hancock was in the official waters of the Republic of Vietnam on July 11, 1972, and the Veteran’s primary MOS was a service and supply handler, the Board finds that the Veteran’s claimed stressor, fear of hostile military activity as related to his military experiences with supply work parties/detachments prior to and with arriving aboard the USS Hancock, is consistent with the places, types, and circumstances of the Veteran’s service. In addition, the Board notes that lack of evidence is not negative evidence. The Board finds there is no clear and convincing evidence that conclusively contradicts the Veteran’s statement regarding his claimed stressor of experiencing shots fired prior to serving aboard the USS Hancock. Indeed, the Board finds no reason to doubt the veracity of the Veteran’s statements as he has consistently reported participating in a work party/detachment that traveled upriver from Da Nang where he experienced shots fired, which is generally consistent with the places, types, and circumstances of the Veteran’s service. The Board also notes that the May 2014 VA examiner did not call into question the Veteran’s credibility or reliability. Pursuant to the “benefit-of-the-doubt” rule, where there is “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. 38 U.S.C. § 5107. Therefore, the Board resolves all doubt in the Veteran’s favor and finds that service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 3. Entitlement to service connection for diabetes mellitus, type II In addition to the general requirements for service connection, a veteran who, during active military service, served in the Republic of Vietnam at any point during the period from January 9, 1962 through May 7, 1975 is presumed to have been exposed to an herbicide agent such as Agent Orange, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). Service in the Republic of Vietnam is “service in the waters offshore and 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). If a Veteran was exposed to herbicides during service and has contracted an enumerated disease, to include diabetes mellitus, type II, to a degree of 10 percent or more at any time after service, the Veteran is entitled to a presumption of service connection, even if there is no evidence of such disease during service. 38 C.F.R. § 3.307, 3.309(e). In other words, service connection may be presumed for residuals of herbicide agent exposure by showing two elements. First, the Veteran must show that he served in 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), or otherwise establish a nexus to service. See Brock v. Brown, 10 Vet. App. 155, 162 (1997). In the present case, the VA treatment records reflect that the Veteran has a current diagnosis of diabetes mellitus, type II. See March 2017 VA treatment record. Therefore, the question before the Board is whether the Veteran had qualifying service in Vietnam to establish presumed exposure to an herbicide agent. As noted above, the Veteran’s lay statements of having been temporarily in-country in Vietnam are found to be credible and consistent with his military personnel records and the DPRIS response concerning the location of the USS Hancock on the date he reported to the ship. Again, the Board notes that there is no affirmative evidence explicitly contradicting the Veteran’s reports of having been temporarily in Vietnam during his active military service immediately prior to his service aboard the USS Hancock and the Veteran’s military personnel records corroborate his assertion that he arrived to the USS Hancock on July 11, 1972, at a time when the ship was in official Vietnam waters. While the records do not specify the precise location of the Veteran between his date of transfer to the USS Hancock on June 2, 1972 and report date of July 11, 1972, his account of being taken to the Philippines and then to Da Nang prior to his report for duty on the USS Hancock, are not found to be farfetched given the circumstances of the Veteran’s service. Accordingly, the Board finds the evidence to at least have reached the point of relative equipoise regarding whether the Veteran served in Vietnam, allowing for the resolution of the doubt in the Veteran’s favor. 38 U.S.C. § 5107(b). As the Board finds that the evidence supports a finding that the Veteran served in Vietnam during the Vietnam War, he is presumed to have been exposed to certain herbicide agents, including Agent Orange, therein. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307. Therefore, service connection for diabetes mellitus, type II, is warranted on a presumptive basis. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II, and entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus, type II To date, the Veteran has not been afforded VA examinations to address the nature and origin of his claimed hypertension and erectile dysfunction disabilities, to include whether such are related to exposure to herbicides and/or his now service-connected diabetes mellitus, type II. Therefore, the Board finds that a remand is warranted to afford the Veteran VA examinations related to these claims. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (stating that “[t]his is a low threshold” for meeting the requirement to trigger VA’s duty to assist to provide an examination). Additionally, the record reflects that there may be outstanding private treatment records related to the Veteran’s claims. Specifically, during the March 2020 Board hearing, the Veteran testified that he received private treatment for his diabetes. See March 2020 Board hearing transcript, p. 20. Additionally, a September 2007 VA treatment record reflects that the Veteran had been followed by Dr. Arrington for 15 plus years as his primary care provider. As none of these private treatment records are associated with the Veteran’s claims file, on remand, the AOJ should attempt to obtain them. Finally, the Board notes that the Veteran indicated that he was on Social Security Administration (SSA) benefits. See July 2014 Correspondence and February 2014 Statement in Support of Claim. As any SSA records may provide relevant information concerning the Veteran’s claims, on remand the AOJ should also attempt to obtain these records. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any records in possession of the SSA that are pertinent to the claimed disability. Make a notation in the claims file of all attempts to obtain these records and all responses received. 2. Obtain any outstanding VA treatment records and associate those documents with the claims file. The last VA treatment of record is dated June 2017. 3. Ask the Veteran to identify any private treatment that he may have received for his hypertension and erectile dysfunction claims. The Board notes that a September 2007 VA treatment record reflects that Dr. Arrington was the Veteran’s primary care provider. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file. 4. Then, schedule the Veteran for VA examinations to determine the nature and origin of the Veteran’s claimed hypertension and erectile dysfunction disabilities, to include as secondary to diabetes mellitus, type II, and/or herbicide exposure. The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner(s). All indicated tests and studies should be performed, and all findings should be clearly set forth in detail. The examiner(s) should respond to the following: (a) Identify all currently diagnosed disabilities present during the appeal period as related to the Veteran’s hypertension and erectile dysfunction claims. (b) For each diagnosed disability, the examiner must opine whether it is at least as likely as not (50 percent probability or greater) that such had its onset in service or is otherwise related to service, to include as due to herbicide exposure. (c) For each diagnosed disability, the examiner must also opine whether it is at least as likely as not (50 percent probability or greater) that such is (1) caused or (2) aggravated by the Veteran’s service-connected diabetes mellitus, type II. In rendering his or her opinion, the examiner should address both the causation and aggravation questions in his or her rationale. In other words, even if the Veteran’s diabetes mellitus, type II, did not cause the Veteran’s claimed disabilities, the examiner should still address whether his diabetes mellitus, type II, could have worsened the disabilities. If aggravation is found, the examiner should quantify the degree of aggravation, if possible and state whether there was an increase in disability regardless of permanence, but medically ascertainable. In addressing these questions, the examiner should assume that the Veteran was exposed to herbicide agents during service. The mere fact that a legal presumption of service connection has not been established for a particular disorder based on herbicide exposure is not dispositive of the question of a nexus to service. Consideration must still be given to the in-service exposure. The examiner must also address the National Academy of Science (NAS), Institute of Medicine, Veterans and Agent Orange: Update 11 (2018), which reflects that 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 an herbicide agent. See https://www.nap.edu/read/25137/chapter/1. A clearly stated rationale for any opinion offered should be provided. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Purcell, 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.