Citation Nr: 21062179 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-47 759 DATE: October 6, 2021 ORDER Entitlement to service connection for hypertension is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder with mixed anxiety and depressed mood is remanded. FINDINGS OF FACT 1. The Veteran was exposed to herbicide agents during his active service in the Republic of Vietnam from June 1969 to October 1969. 2. The most probative evidence of record shows that the Veteran's hypertension is at least as likely as not related to his exposure to herbicide agents during active service. CONCLUSION OF LAW The criteria to establish entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1967 to November 1969, to include service in the Republic of Vietnam. The acquired psychiatric disorder claim initially came before the Board of Veterans' Appeals (Board) on appeal of a December 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, an SOC was issued. In September 2017, the Veteran submitted a VA Form 9, in which the Veteran withdrew his legacy claims of peripheral neuropathy of the bilateral upper and lower extremities and TDIU, limiting the appeal to only that of an acquired psychiatric disorder. The hypertension claim was initially before the Board on appeal of an August 2018 rating decision. In that rating decision, the RO continued the Veteran's increased rating claims for tinnitus and bilateral hearing loss and denied the Veteran's claims for a blood condition, hypertension, left ankle condition, right ankle condition, and a skin condition. In November 2018, the Veteran filed a Notice of Disagreement (NOD) as to each of the claims. In April 2020, an SOC was issued as to each of the claims. In a June 2020 VA Form 9, the Veteran limited his appeal to that of hypertension. Thus, the Board will not further address the Veteran's tinnitus, bilateral hearing loss, blood condition, left ankle, right ankle, and skin condition claims. In September 2017, the Veteran requested a videoconference hearing at a local VA office. In November 2020 correspondence, the Veteran was notified that a hearing was scheduled for December 2020. In a November 2020 Statement in Support of Claim, the Veteran withdrew his request for a hearing. The Board also notes that the Veteran's appeals relating to his headaches and peripheral neuropathies of the bilateral upper and lower extremities have been docketed separately, under the modernized appeals review system, and as a result will be addressed in a separate opinion. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a 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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including hypertension, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For VA compensation purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 or greater; and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 or greater with diastolic blood pressure less than 90. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). In addition, hypertension must be confirmed by readings taken two or more times on at least three different days. See id. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(a)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(i). Section 3.307(a)(6) also provides that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). The diseases presumed to be associated with herbicide exposure include: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). Entitlement to service connection for hypertension. The Veteran contends that he has hypertension that is related to his exposure to herbicide agents during his active service. The record reflects that the Veteran had service in the Republic of Vietnam from June 1969 to October 1969. See October 1969 Military Personnel Record. As such, his in-service exposure to herbicide agents is presumed. 38 C.F.R. § 3.307(a)(6)(iii). The Veteran also has a current diagnosis for hypertension. See July 2018 VA examination. The Veteran's service treatment records (STRs) are silent for any complaint, diagnosis, or treatment for hypertension. Regarding the question of whether the Veteran's hypertension is related to his active service, the Veteran was afforded a VA examination in July 2018, at which time the examiner noted that the Veteran had a diagnosis of hypertension. In the Medical History section of the report, the examiner noted that the first indication of a diagnosis of hypertension was not made until years after service in 2010 and that hypertension was not on the Agent Orange presumptive list. In February 2020 correspondence (received June 2020), a private clinician, Dr. M.B., then provided an opinion regarding the nature and etiology of the Veteran's hypertension. Dr. M.B. noted that the entire claims file was reviewed and that a conversation took place with the Veteran. The examiner opined, in relevant part, that it was at least as likely as not that the Veteran's hypertension was caused and aggravated by his exposure to Agent Orange. The examiner also opined that it was at least as likely as not that the Veteran's symptoms of chronic pain from his neuropathy and diagnosed anxiety and alcohol use disorder caused and aggravated his hypertension, as well. However, as the Veteran is not currently service connected for anxiety or neuropathy, the Board will not further address these portions of the opinion. As to the nexus opinion relating to exposure to an herbicide agent, to specifically include Agent Orange, the examiner reasoned that the National Academy of Science (NAS) Institute of Medicine (IOM) upgraded hypertension to the category of "sufficient" for association with Agent Orange in 2018 and that this move required epidemiologic research showing an association between exposure to herbicides and a particular outcome. Here, the Board notes that hypertension is not one the diseases that is presumed to be associated with exposure to herbicide agents under 38 C.F.R. § 3.309(e). However, the Veteran may still be entitled to direct service connection for hypertension based on his presumed exposure to herbicide agents during service. In Veterans and Agent Orange: Update 11 (2018), the National Academy of Sciences concluded that there was sufficient evidence of an association between hypertension and herbicide agents. The sufficient category reflects that "there is enough epidemiologic evidence to conclude that there is a positive association." See Hypertension Upgraded in Latest Biennial Review of Research on Health Problems in Veterans that May be Linked to Agent Orange Exposure during Vietnam War, The National Academies of Sciences, Engineering, and Medicine (Nov. 15, 2018), http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137. This categorization represents a change from hypertension's previous classification in the category of limited or suggestive evidence, meaning that "epidemiologic research results suggest an association between exposure to herbicides and a particular outcome, but a firm conclusion is limited because chance, bias, and confounding factors could not be ruled out with confidence." Id. The Board finds that this conclusion from the National Academy of Science's most recent Agent Orange update is probative evidence to support finding that the Veteran's hypertension is related to his exposure to herbicide agents during active service. Additionally, the Board recognizes the portion of the opinion in which the February 2020 clinician similarly recognized the association between hypertension and herbicide exposure and discussed the potential significance of the National Academy of Science's November 2018 update concerning a positive association between hypertension and Agent Orange. Based on the foregoing, the weight of the evidence is in favor of finding that the Veteran's hypertension is related to his presumed in-service exposure to herbicide agents. Entitlement to service connection for hypertension is therefore granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As the Board is granting entitlement to service connection on this basis, it is unnecessary to address any other theory of entitlement advanced. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder with mixed anxiety and depressed mood is remanded. The Veteran contends that service connection is warranted for an acquired psychiatric disorder, to include adjustment disorder with mixed anxiety and depressed mood. The record shows that the Veteran was afforded an Initial Posttraumatic Stress Disorder DBQ in December 2014, at which time the examiner noted that the Veteran had a diagnosis of an adjustment disorder with mixed anxiety and depressed mood. Additionally, the examiner noted that the Veteran did not have a diagnosis of PTSD that conformed to DSM-5 criteria and, as such, it was "very unlikely that his condition is secondary to his military service." Upon further review of the record, however, a February 2020 VA treatment record shows that the Veteran has since been diagnosed with PTSD, chronic. Also, of record, is a Mental Disorders (Other than PTSD and Eating Disorders) DBQ in February 2020. Here, the examiner noted that the Veteran had diagnoses of an unspecified anxiety disorder and an alcohol use disorder. The examiner also noted that the Veteran's mental health disorders more likely than not started when he was in the service. Yet, adequate rationale was not provided in support of this opinion. Further, the Board finds that there are possibly outstanding medical records as the February 2020 clinician referenced that the Veteran was receiving SSR benefits. Yet, these records are not currently associated with the claims file. Thus, on remand, these outstanding records must be associated with the claims file, and a new examination should be scheduled to determine the nature and etiology of the Veteran's acquired psychiatric disorders. The matters are REMANDED for the following action: 1. Contact the Social Security Administration and obtain all records associated with any claim for disability benefits. 2. Schedule a VA examination with an appropriate clinician to determine the nature and etiology of the Veteran's acquired psychiatric disorders, to include adjustment disorder and PTSD. The examiner should also review the claims folder and acknowledge such review. If PTSD is diagnosed, the examiner should identify the elements supporting the diagnosis, to include the stressor(s) and whether such stressor(s) are adequate to support a diagnosis of PTSD. If PTSD is not diagnosed, the examiner should explain why the Veteran does not meet the criteria for this diagnosis. With respect to any other acquired psychiatric disorders found to be present, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disorder originated while the Veteran was serving on active duty or is otherwise etiologically related to service. The examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinion. The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After completion of the above, readjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson 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.