Citation Nr: 21004911 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 13-34 709 DATE: January 28, 2021 ORDER Entitlement to service connection for hypertension is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran’s hypertension is related to his presumed exposure to herbicide agents as a result of his service in the Republic of Vietnam. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1962 to July 1984. The Veteran claims entitlement to service connection for hypertension as a result of his military service. Specifically, he contends that his currently-diagnosed hypertension is related to his presumed exposure to herbicide agents as a result of his service in the Republic of Vietnam. As will be explained, after resolving all reasonable doubt in the Veteran’s favor, the Board concludes that the Veteran’s is related to his presumed exposure to herbicide agents while serving in the Republic of Vietnam. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). Initially, the Board notes that the Veteran’s service personnel records confirm that he served in the Republic of Vietnam; thus, he is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. In addition to the general requirements for service connection, if a veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases listed in 38 C.F.R. § 3.309(e) shall be service connected if the requirements of 38 U.S.C. § 1116 and 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). The Board notes that hypertension is not listed as a disease presumptively associated with exposure to herbicide agents. See 38 C.F.R. § 3.309(e). As such , service connection for hypertension cannot be presumed. Notwithstanding the inapplicability of the presumption, the United States Court of Appeals for the Federal Circuit has held that a claimant is not precluded from establishing service connection for a disease claimed to be related to herbicide exposure, as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). As noted in prior Board remands, a November 2018 National Academy of Sciences (NAS) study moved hypertension from the “limited or suggestive” to “sufficient” category for an association with herbicides. Veterans and Agent Orange: Update 11 (2018). In September 2020, the Board remanded the Veteran’s claim to the agency of original jurisdiction (AOJ) so that an opinion could be obtained that addressed whether his hypertension was related to his presumed exposure to herbicide agents. An opinion was received in November 2020, and the opinion provider concluded that the Veteran’s hypertension was less likely than not related to his military service. The opinion provider reasoned that a prior study from the NAS demonstrated only limited or suggestive evidence of an association between herbicide agents and hypertension. Because the opinion provider did not address the more recent November 2018 NAS study identified by the Board, the AOJ requested an addendum opinion in December 2020. The opinion provider stated that his opinion had now changed and, given the more recent NAS study, it was his opinion that there was sufficient evidence to demonstrate that herbicide exposure was an established primary etiology for the development of hypertension. The opinion provider concluded that the Veteran’s currently-diagnosed hypertension may be considered to be secondary to his in-service exposure to herbicide agents. The Board notes that other opinions have been offered in this appeal as to whether the Veteran’s hypertension is directly related to his presumed exposure to herbicide agents, whether such had its onset during his active duty military service, and whether such is secondary to his service-connected diabetes mellitus. Insofar as other opinions address the potential relationship between the Veteran’s hypertension and his presumed exposure to herbicide agents, the Board finds that the December 2020 opinion is the most probative evidence of record, as it reflects consideration of all pertinent evidence of record including the November 2018 NAS study. Furthermore, because the December 2020 opinion supports the award of service connection on a direct basis, the substance of the opinions addressing whether his hypertension had its onset during his active duty military service, or whether such is secondary to his service-connected diabetes mellitus need not be discussed. In summation, based on the medical opinion provided by the VA clinician in December 2020, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current-hypertension is related to his presumed exposure to herbicide agents while serving in the Republic of Vietnam. 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. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, 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.