Citation Nr: 21002788 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 12-06 796 DATE: January 14, 2021 ORDER Service connection for hypertension is granted. Service connection for asbestosis is granted. REMANDED Service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran’s hypertension was caused by his service, to include exposure to herbicide agents, or was caused or aggravated by his service-connected PTSD. 2. The evidence shows that the Veteran’s asbestosis is at least as likely as not (50 percent or more probability) caused by his service, to include exposure to asbestos therein. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 2. The criteria for service connection for asbestosis have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1966 to October 1970. He served on U.S.S. Long Beach and was deployed to Vietnam from March to June 1967. A November 2017 Board decision denied service connection for hypertension and remanded the claims for service connection for sleep apnea and asbestosis. The Veteran appealed to the United States Court of Appeals for Veterans Claims (“CAVC” or “the Court”). In October 2018, the Court vacated the portion of the November 2017 Board decision denying the service connection for hypertension pursuant to a Joint Motion for Partial Remand (JMPR). An April 2019 Board decision remanded the service connection claim for hypertension for a VA nexus opinion pursuant to JMPR. Of note, service connection for right foot burn was granted by July 2018 rating decision and therefore is not an issue on this appeal. The Veteran was afforded two Board hearings for this appeal in December 2016 and November 2020, both before the undersigned Veterans Law Judge. Service Connection 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 (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to, or aggravated by, a service-connected disability. 38 C.F.R.§3.310 (a). Service connection can be established based on herbicide exposure. 38 C.F.R. § 3.307(a)(6). A veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam is presumed to have been exposed to herbicides and the veteran is entitled to a presumption of service connection for certain diseases listed under 38 C.F.R. § 3.309(e). The November 2017 Board decision found that the Veteran was presumed to have exposure to herbicide agent during his service in Vietnam. However, it was noted that hypertension, asbestosis, and sleep apnea are not disorders or deceases listed under 38 C.F.R. § 3.309(e). As such, the herbicide presumption is not applicable to these diseases, meaning that the Veteran must proffer direct evidence of how these diseases were the result of his military service, to include any exposures therein. Even if the presumptive service connection is unavailable, the Board must consider whether service connection is available based on a direct basis. Hypertension The Veteran claimed that his hypertension was caused by his active service (to include exposure to herbicide agents) or service-connected PTSD. He testified at his November 2020 Board hearing that he had high blood pressure since the 1970s. His wife testified that the Veteran had experienced headaches in 1971 and had been on blood pressure medication ever since. Service treatment records (STRs) did not show that the Veteran was diagnosed or treated for hypertension during service. However, his separation physical showed blood pressure (BP) reading of 120/60 indicating borderline elevated systolic blood pressure. U.S. National Guard enlistment physical dated March 1976 again showing borderline elevated systolic blood pressure of 120. A private Disability Benefit Questionnaire (DBQ) dated October 2014 showed that the Veteran had been diagnosed with hypertension since at least 2013. The National Academy of Sciences (NAS) had indicated that there was “sufficient evidence of association” between in-service tactical herbicide exposure and hypertension. See Nat’l Acad. of Sci., Inst. of Med., Veterans & Agent Orange: Update 2018 (the 11th edition). A VA examiner provided a medical opinion in November 2019, stating that the Veteran’s hypertension was less likely than not (less than 50 percent probability) caused by his service or service connected PTSD. The examiner indicated that it was more likely caused by the Veteran’s long-term obesity. The Veteran provided medical literature in August 2020, showing that PTSD was associated with emotional eating which resulted in obesity. The Board finds that the evidence of record is in relative equipoise as to whether the Veteran’s hypertension is caused by his service, to include exposure to herbicide agents, or was caused or aggravated by his service-connected PTSD. Accordingly, service connection for hypertension is granted. Asbestosis The testified at his November 2020 Board hearing that the ship he served on (the U.S.S. Long Beach) had undergone repairs during his service and the residuals of asbestos lines left on the ship, which he breathed in constantly for approximately six months. VA treatment records show that the Veteran was noted to have left lung scar and asbestosis in March 2012. Records in July 2013 show that Veteran’s reported that he was exposed to asbestos during his time in the Navy during 1960s, and that he was diagnosed with asbestosis in 1992 by a specialist in Dallas. CT scan in January 2014 showed pleural thickening likely due to known asbestos exposure. The Board finds that the evidence shows that the Veteran’s asbestosis is at least as likely as not (50 percent or more probability) caused by his service, to include exposure to asbestos. Accordingly, service connection for asbestosis is granted. REASONS FOR REMAND The Veteran is seeking service connection for sleep apnea, which he believed resulted from his service to include exposure to herbicide agents and asbestos. A private sleep study in May 2002 diagnosed the Veteran with moderated obstructive sleep apnea. A VA examination on PTSD in January 2017 also diagnosed him with insomnia disorder and indicated that asbestosis and sleep apnea may be related to his PTSD. However, evidence is not clear on the etiology of the Veteran’s sleep apnea. Therefore, the matter is REMANDED for the following action: Obtain a medical opinion to address the etiology of the Veteran’s sleep apnea. The examiner should answer the following questions: a) Is it at least as likely as not (50 percent or greater) that the Veteran’s sleep apnea is the result of his service, to include his presumed exposure to herbicide agents or asbestos? Why or why not? b) Is it at least as likely as not (50 percent or greater) that the Veteran’s sleep apnea was caused by his service-connected conditions, to include PTSD and asbestosis? Why or why not? c) Is it at least as likely as not (50 percent or greater) that the Veteran’s sleep apnea was aggravated (made worse) by his service-connected conditions, to include PTSD and asbestosis? Why or why not? If aggravation is found, the examiner should identify a baseline level of severity of sleep apnea by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the sleep apnea. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Wang, 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.