Citation Nr: A20009598 Decision Date: 06/01/20 Archive Date: 06/01/20 DOCKET NO. 190913-31086 DATE: June 1, 2020 ORDER Entitlement to service connection for hypertension is granted. FINDING OF FACT The Veteran has hypertension attributable to exposure to herbicide agents, including Agent Orange. CONCLUSION OF LAW The criteria for establishing service connection for hypertension, as a result of exposure to herbicide agents including Agent Orange, are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105, also known as the Appeals Modernization Act (AMA). The law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The law went into effect in February 2019. The Veteran served in the United States Army from May 1970 to December1972. This appeal to the Board of Veterans’ Appeals (Board) arose from an August 2019 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appealed the rating decision, requesting Direct Review of the evidence considered by the Agency of Original Jurisdiction (AOJ) at the time of the August 2019 rating decision. See September 2019, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). The Veteran’s claim of entitlement to service connection for hypertension was finally adjudicated in prior rating decisions dated October 2013 and June 2016. See 38 U.S.C. § 7015; 38 C.F.R. §§ 3.160(d), 20.302, 20.1103; October 22, 2013 VA Letter of Notification; July 5, 2016, VA Letter of Notification. In the August 2019 rating decision, the AOJ found that new and relevant evidence was submitted to warrant readjudicating the claim of service connection for hypertension, to include as a result of exposure to herbicide agents, including Agent Orange. Additionally, the AOJ made the following findings: (1) the Veteran has sufficient service to meet the minimum requirements for presumptive service connection (noting that the Veteran served at least 90 days on active duty during a period of War and/or after December 21, 1946); (2) the Veteran was exposed to Agent Orange during military service (noting the evidence shows that the Veteran performed service in Vietnam and exposure to Agent Orange is conceded); (3) the Veteran has been diagnosed with hypertension (noting the private treatment record from N.A.S., M.D., PhD, dated January 1, 2019); (4) the private medical opinion from N.A.S., M.D., PhD, linked hypertension to Agent Orange exposure; and (5) hypertension is a presumptive condition under 38 C.F.R. § 3.309(a) (noting the claimed chronic disability is a chronic disease which may be presumptively linked to the Veteran’s military service). The Board is bound by these favorable findings. 38 C.F.R. § 3.104(c). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). A Veteran who served in the Republic of Vietnam between January 9, 1962 to May 7, 1975, is presumed to have been exposed to certain herbicide agents (including Agent Orange) during such service, absent affirmative evidence to the contrary. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). Service connection will be presumed for certain listed diseases associated with exposure to certain herbicide agents, including Agent Orange, that become manifest to a compensable degree within a specified presumptive period after service. 38 C.F.R. §§ 3.307(a)(6); 3.309(e). Even if a Veteran is not entitled to a presumption of service connection based on a disease associated with exposure to herbicide agents, include Agent Orange, VA must consider the claim on a direct service connection basis. When a disease is first diagnosed after service but not within the applicable presumptive criteria, service connection may nonetheless be established by evidence demonstrating that the disease was first incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In any aspect of the claim, a reasonable doubt exists because of an approximate balance of positive and negative concerning any point will be resolved in favor the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran contends that he has hypertension due to his service in Vietnam, specifically being exposed to Agent Orange. The record evidence establishes that the Veteran has a current diagnosis of hypertension. Additionally, the Veteran has verified service in the Republic of Vietnam and his exposure to herbicide agents, including Agent Orange, has been conceded. See August 2019, Rating Decision (Favorable Findings). As previously noted, service connection based on exposure to certain herbicide agents, including Agent Orange, will be presumed for certain diseases. However, hypertension is not one of the enumerated diseases. 38 C.F.R. § 3.309(e). That notwithstanding, the Board must still consider whether service connection is warranted on a direct basis. Combee v. Brown, supra; 38 C.F.R. § 3.303(d). As to a nexus, or link, between the Veteran’s hypertension and his exposure to herbicide agents while serving in Vietnam, the Veteran submits the findings by the National Academies of Science, Engineering, and Medicine (NAS), which indicate that there is sufficient evidence of association between hypertension and exposure to Agent Orange and other herbicides used during the Vietnam War. See Veterans and Agent Orange: Update 11 (November 2018) (noting the NAS concludes that the information now assembled constitutes sufficient evidence of an association between at least one of the chemicals of interest and hypertension). See generally Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (noting the NAS’s statistical analysis of the scientific and medical data pertaining to the health effects of Agent Orange exposure remains a source of relevant, competent medical evidence that VA may “consider when assessing whether the totality of the evidence is sufficient to establish direct service connection). Additionally, the Veteran submits a January 2019 private medical opinion, prepared by N.A.S., M.D., PhD (the Veteran’s treating cardiologist). Dr. N.A.S. related that he had reviewed the Veteran’s medical history, including his hospital, surgical, and cardiac history, and had reviewed the circumstances and events of the Veteran’s military service, including his service in Vietnam as a medic where he was exposed to Agent Orange. Dr. N.A.S related that he was familiar with the Veteran’s history, explaining that he has examined the Veteran often while under his care. According to Dr. N.A.S., the Veteran has a diagnosis of hypertension and has no other risk factors that may have precipitated his hypertension. Based on this evidence, a review of the Veterans and Agent Orange: Update 11 (2018), and his clinical judgment, Dr. N.A.S. opined that the Veteran’s hypertension is more than likely a direct result of his exposure to Agent Orange as a soldier in Vietnam. There is no contrary opinion of record. Based on the January 2019 private medical opinion, with support from the NAS scientific and medical data pertaining to the health effects of Agent Orange exposure, and resolving all reasonable doubt in favor of the Veteran, the Board finds the medical evidence is relevant and competent to establish a nexus between the Veteran’s hypertension and his exposure to herbicide agents, including Agent Orange. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.103, 3.303(d); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the Board determines that the criteria for service connection for hypertension as a result of exposure to herbicide agents, including Agent Orange, have been met, and entitlement to service connection is warranted. The appeal is granted. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zigan Danklou 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.