Citation Nr: 21062344 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 06-06 289 DATE: October 7, 2021 ORDER Entitlement to service connection for hypertension is granted. REMANDED Entitlement to service connection, to include on a secondary basis, for an esophageal condition, to include gastroesophageal reflux disease (GERD) and hiatal hernia, to include as due to environmental exposure, is remanded. FINDING OF FACT The Veteran's hypertension has been shown to be etiologically related to exposure to herbicides during service. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1968 to February 1970, from June 1976 to September 1976, and from July 1989 to July 1994, with additional periods of ACDUTRA in the Army Reserve. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision by a Department of Veterans Affairs Regional Office (RO). In October 2011, the Veteran testified at a Board videoconference hearing before a Veterans Law Judge who is no longer employed by the Board. The Veteran testified at another Board hearing before the undersigned in May 2019. Copies of transcripts of those hearings have been associated with the claims file. In June 2020, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to obtain VA examinations. VA examinations were obtained in August 2020. A March 2021 Board Decision found the August 2020 VA examination reports inadequate, and the matters were remanded again to obtain further VA examinations. The requested VA examinations were obtained in June 2021. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Hypertension The Veteran seeks entitlement to service connection for hypertension. Specifically, he asserts that his hypertension is etiologically related to in-service environmental exposures. Alternatively, he asserts that his hypertension is etiologically related to in-service exposure to herbicides. See August 2007 and August 2008, VA Forms 21-4138, Statement in Support of Claim, October 2011 Board Hearing Transcript, and March 2018 VA Examination. After a review of the evidence of record, the Board finds that entitlement to service connection for hypertension is warranted. Specifically, the Board finds that entitlement to service connection is warranted as the Veteran's hypertension has been shown to be etiologically related to his in-service herbicide exposure. The evidence of record includes a March 2021 VA memorandum conceding exposure to herbicides during service. VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all Veterans who served in the Republic of Vietnam during the Vietnam Era. See 38 U.S.C. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 -346 (1994); see also 61 Fed. Reg. 57586 -57589 (1996). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to herbicides may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113(b) and 1116 and 38 C.F.R. § 3.303. In this regard, the Board notes that in the Veterans and Agent Orange: Update 11 (2018), the National Academy of Sciences Institute of Medicine (NAS) found sufficient evidence of an association for hypertension and exposure to Agent Orange and other herbicides used during the Vietnam War. Therefore, hypertension has been upgraded from its previous classification in the category of "limited or suggestive" evidence of an association to the category of "sufficient" evidence of an association. According to 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 Veteran underwent a VA hypertension examination in March 2018. He reported that he started treatment for hypertension in 2005, and he listed multiple exposures of concern including herbicides "among many others." The examiner opined that it was "less likely as not" that the Veteran's hypertension was caused by exposure to Agent Orange. In support of this opinion, the examiner stated that Agent Orange has not been shown to cause hypertension. Another VA examination report was obtained in August 2020. With regard to the Veteran's presumed exposure to herbicides, the examiner stated that it was "less likely than not that the Veteran's hypertension was caused by, or is otherwise etiologically related to, his presumed herbicide exposure." No rationale was provided. Lastly, a June 2021 VA hypertension examination report noted that the examiner reviewed the Veteran's claims file, and based the opinion on the Veteran's individual medical history. The examiner opined that the Veteran's hypertension was "at least as likely as not" etiologically related to his in-service herbicide exposure. The examiner based this opinion on the NAS 2018 finding that there was enough epidemiologic evidence to conclude that there was a positive association between hypertension and herbicide exposure, including a medical study finding a statistically significant association. The examiner further noted a 2015 medical study which found hypertension to be statistically significantly associated with serum concentrations of PCDDs, PCDFs, dioxin-like PCBs, and total dioxins based on adjusted odds rations between the first and fourth quartile of each of those COIs among incinerator workers. Further studies were also noted to support this finding. With regard to herbicide exposure, the Board finds the June 2021 VA examination the most probative evidence or record. In this regard, as noted in the prior June 2020 Board Decision, the March 2018 VA examination was issued prior to Veterans and Agent Orange: Update 11 the National Academies of Sciences, Engineering and Medicine (NAS), which found sufficient evidence of an association for hypertension and exposure to herbicides. Additionally, as noted in the prior March 2021 Board Decision, the August 2020 VA examination was found inadequate as the examiner failed to provide any rationale in concluding that the Veteran's hypertension was not etiologically related to herbicide exposure, nor did the examiner discuss the NAS report as requested. The Board will resolve reasonable doubt in the Veteran's favor. The claim is granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 2. Esophageal Condition As noted above, this claim was remanded in March 2021 to obtain another VA examination. The examiner was asked to provide an opinion as to the etiology of any diagnosed gastroesophageal condition, to include GERD. Specifically, the examiner was asked to provide opinions as to direct service and secondary service connection, to include whether the service-connected disabilities aggravated any diagnosed gastroesophageal condition. In this regard, it was noted that aggravation did not need to be permanent. The requested VA examination was obtained in June 2021. The examiner noted diagnoses for GERD and hiatal hernia. The examiner opined that it was "less likely as not" that the claimed diagnosis of GERD was etiologically related to service, to include as due to any environmental exposures. In support of this opinion, the examiner noted that the STRs were silent for any diagnosis of GERD, and that there was no evidence that exposure to welding fumes, fiberglass resin, toxic chemical storage facilities, unclean and unfiltered air conditioning, dust and allergen contaminates, asbestos, pesticides, dioxins, hydrocarbons, heavy metals, marine paints, epoxy resins, paint thinners, industrial cleaners and degreasers including bleach, ammonia, diesel fuel and fumes, hydraulic fluids, Navy bunker oil, uncombusted unfiltered heating oil soot, wood fires, burning classified materials over burn barrels, sandblasting operations, silica, machine shop operations, ammunition residue, office supplies and second hand smoke were causes of GERD. Instead, the examiner referenced medical literature noting that the development of GERD reflected an imbalance between injurious or symptom eliciting factors and defensive factors. The examiner also noted risk factors for GERD including obesity and hiatal hernia. The Board finds the June 2021 VA examination report inadequate. Initially, the Board notes that while the examiner noted two diagnoses, GERD and hiatal hernia, only a nexus opinion was provided with regard to GERD. As noted above, the examiner was asked to provide a nexus opinion with regard to any condition diagnosed. Additionally, the examination report raised the issue of whether the Veteran's obesity was an intermittent step between his service-connected disabilities and his diagnosed conditions, including hiatal hernia and GERD. The VA General Counsel states in an opinion that obesity is not a disease for service connection purposes. VAOPGCPREC 1-2017 (Jan 6, 2017). Nonetheless, obesity may be an intermittent step between a service-connected disability and a current disability on a secondary basis. To grant service connection, the adjudicators would have to resolve the following issues: (1) whether a service-connected disability caused a veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability for which a veteran is seeking service connection; and (3) whether the current disability for which a veteran is seeking service connection would not have occurred but for the obesity caused by the service-connected disability. Id. at 9-10. In Walsh v. Wilkie, 32 Vet. App. 300 (2020), the Court of Appeals for Veterans Claims held VAOPGCPREC 1-2017 not only applies when a service-connected disability causes obesity, but also when a service-connected disability aggravates obesity. When raised by the record, the Board must consider whether obesity was caused or aggravated by a service-connected disability, consistent with 38 C.F.R. § 3.310(b). However, the examiner did not provide an opinion with regard to obesity. The Board does note that with regard to the service connection claim for hypertension, the same examiner did provide an opinion with regard to obesity. A review of that examination report shows the examiner found that the service-connected conditions did not cause or aggravate the Veteran's obesity. The examiner stated that this finding was based on medical literature. In this regard, the examiner stated that "not all individuals with mental health conditions and or musculoskeletal conditions have weight gain." In addition, the examiner stated that exercise was encouraged by medical providers for patients with mental health conditions and/or musculoskeletal conditions to foster weight loss, maintain weight and prevent weight gain. However, the examiner did not address these factors as they specifically relate to the Veteran, such as symptoms specifically related to his mental health conditions or muscular skeletal conditions. As such, the rationale is incomplete. The examiner additionally did not address whether medications used to treat the service-connected disabilities caused or aggravated his obesity. Accordingly, the Board finds the examiner's opinion inadequate. Therefore, a Remand is necessary to obtain a VA examination that adequately addresses these inquiries on appeal. The matter is REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran's VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. 2. Then, obtain an addendum to the July 2021 VA examination by an appropriate examiner to determine the nature and etiology of his diagnosed gastroesophageal condition, to include GERD and hiatal hernia. The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed hiatal hernia is etiologically related to his period of service, to include as due to any environmental exposures? Please explain why or why not. The examiner should address the Veteran's statements as to his environmental exposures during service, including exposure to welding fumes, fiberglass resin, toxic chemical storage facilities, unclean and unfiltered air conditioning, dust and allergen contaminates, asbestos, pesticides, dioxins, hydrocarbons, heavy metals, marine paints and epoxy resins, paint thinners, industrial cleaners and degreasers including bleach, ammonia, diesel fuel and fumes, hydraulic fluids, Navy bunker oil, uncombusted unfiltered heating oil soot, wood fires, burning classified materials over burn barrels, sandblasting operations, silica, machine shop operations, ammunition residue such as from explosive and weapon discharge particulates, office supplies such as ink toner and carbon paper, and second hand smoke. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed gastroesophageal condition, to include GERD and hiatal hernia, was caused by a service-connected disability, to include as due to medications used to treat his service-connected disabilities? Please explain why or why not. The examiner should discuss pertinent medical records showing the Veteran complained of side effects from medications used to treat his psychiatric disorder including an upset stomach and coughing causing stomach acid to enter his esophagus. (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed gastroesophageal condition, to include GERD and hiatal hernia, was aggravated by a service-connected disability, to include as due to medications used to treat his service-connected disabilities? Please explain why or why not. The examiner is advised that aggravation does not need to be permanent. If the examiner finds that the disability was aggravated by the service-connected disability, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. The examiner should discuss pertinent medical records showing the Veteran complained of side effects from medications used to treat his psychiatric disorder including an upset stomach and coughing causing stomach acid to enter his esophagus. The examiner should also determine the nature and likely etiology of the Veteran's obesity and his diagnosed gastroesophageal condition, to include GERD and hiatal hernia. Based on claims file review and examination of the Veteran, the examiner should provide opinions responding to the following: (d) Opine as to whether it is at least as likely as not (50% or better probability) that the Veteran's service-connected disabilities, including his psychiatric disorder, asthma and musculoskeletal disabilities, caused him to become obese, to include as due to any lack of exercise resulting from his service-connected disabilities. Please explain why or why not. (e) If the answer to (d) is "no," opine as to whether it is at least as likely as not (50% or better probability) that the Veteran's service-connected disabilities, including his psychiatric disorder, asthma and musculoskeletal disabilities, aggravated his obesity, to include as due to any lack of exercise resulting from his service-connected disabilities. Please explain why or why not. (f) Opine as to whether it is at least as likely as not (50% or better probability) that obesity (or the aggravation of obesity per question (e)) was a substantial factor in causing his diagnosed gastroesophageal condition, to include GERD and hiatal hernia. Please explain why or why not. (g) Opine as to whether it is at least as likely as not (50% or better probability) that the Veteran would not have a diagnosed gastroesophageal condition, to include GERD and hiatal hernia, if he were not obese (or but for obesity aggravated by (service-connected disability) per question (e)). Please explain why or why not. Please explain why or why not in answer to each question above. The examiner should review pertinent documents in the Veteran's claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lamb, 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.