Citation Nr: 21002810 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 14-08 379 DATE: January 15, 2021 ORDER Entitlement to service connection for hypertension is granted. FINDING OF FACT Hypertension is not included on the list of diseases presumptively associated with tactical herbicide exposure; however, the most probative evidence of record demonstrates that it is at least as likely as not that the Veteran’s hypertension is causally related to his presumed in-service exposure to tactical herbicides. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1968 to July 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2018, this matter was initially before the Board. The Board reopened the claim for service connection for hypertension and remanded the claim on the merits for further development. It now returns for appellate review. Additionally, in February 2018, the Veteran and his spouse presented testimony at a hearing before an undersigned Veterans Law Judge, as to the appeal of whether new and material evidence had been received to reopen the claim of entitlement to service connection for hypertension. A transcript of that hearing is of record. The Veteran also provided testimony at a hearing in January 2021 before two additional undersigned Veterans Law Judges of the Board. See 38 U.S.C. § 7102; 38 C.F.R. § 20.706; Arneson v. Shinseki, 24 Vet. App. 379 (2011). A transcript of that hearing has not yet been added to the file, as this decision is being processed under the Board’s “One Touch” hearing program. A copy of this transcript will be added to the Veteran’s claims file in the ordinary course of business. 1. Entitlement to service connection for hypertension The Veteran argues service connection for hypertension is warranted. Specifically, as set forth in his July 2012 notice of disagreement, the Veteran generally reported he served aboard the USS Ranger in the Navy and that he went ashore to the Republic of Vietnam in order to repair an airplane. Alternatively, as set forth in his February 2018 testimony, the Veteran reported that during service, he had instances of elevated blood pressure. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. To establish service connection on a direct incurrence basis, the Veteran must show: (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, 1167 (Fed. Cir. 2004). Initially, as to the existence of a present disability, the Board finds that the evidence of record confirms the Veteran has a diagnosis of hypertension. In this regard, a July 2019 VA examiner endorsed a diagnosis of hypertension, which is consistent with the other clinical evidence of record. As the Veteran is acknowledged to have a diagnosis of hypertension, the issue before the Board becomes whether the disability is related to his active service. At this juncture, the Board recognizes, consistent with the evidence of record, a November 2017 Board decision conceded the Veteran had in-service exposure to tactical herbicides. Specifically, the November 2017 Board decision noted, in part, the statements provided by the Veteran’s former fellow service members corroborated his own reports of being assigned to temporary duty in the Republic of Vietnam in December 1969. Under 38 C.F.R. § 3.307(a)(6)(iii), he is therefore presumed to have been exposed to dioxin-based tactical chemical herbicides (colloquially referred to as Agent Orange). In the case of such a veteran, service incurrence for certain diseases is presumed if they manifest to a compensable degree within specified periods, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of § 3.307(d) are also satisfied. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). However, hypertension is not enumerated by 38 C.F.R. § 3.309(e) as a disease presumptively associated with herbicide exposure. Nonetheless, the Board notes the publication of a National Academy of Science (NAS) study, Veterans and Agent Orange: Update 11 (2018), referenced by the July 2019 VA opinion provider in this case, which has found “sufficient evidence” of an association between hypertension and exposure to herbicide agents such as Agent Orange. This publication upgrades hypertension’s previous classification in the category of “limited or suggestive” evidence of an association, to the category of “sufficient” evidence of an association. According to the NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. The Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact “incurred” during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this regard, a July 2019 VA examiner opined that it was as least as likely as not that Veteran’s hypertension was secondary to his exposure to Agent Orange while in military service. As rationale, the July 2019 VA examiner explained the most current information indicated that there was now sufficient evidence for an association between hypertension and prior exposure to Agent Orange, citing to the NAS study. The July 2019 VA examiner further noted that the Veteran had no history of hypertension prior to military service and was reportedly exposed to Agent Orange while in the service. Similarly, in a March 2018 private medical letter, M. F., M. D. opined that the Veteran had hypertension which was directly related to Agent Orange. Additionally, in a June 2018 statement, Dr. M. F. again opined that the Veteran’s exposure to dioxin, which was the toxic agent in Agent Orange, caused a significant degree of peripheral vascular fibrosis which, in turn, led to his hypertension. Specifically, Dr. M. F. explained, in part, that his theory was, when exposed to a toxic agent, the skin was going to react in certain ways, and one way would be fibrosis of the subcutaneous tissues in order to try and prevent further exposure of the toxic agent, and which could lead to peripheral vascular insufficiency by capillary sclerosis. Dr. M. F. also explained that with sclerosis impairing the blood flow, the heart then would pump the blood harder and faster in an effort to improve circulation, resulting in hypertension. There are no contrary opinions of record. Thus, upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current hypertension is due to exposure to tactical herbicidal agents during service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for hypertension   is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Espinoza, 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.