Citation Nr: 21063444 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 19-05 599 DATE: October 14, 2021 ORDER Entitlement to service connection for hypertension is granted. REMANDED The request to reopen the claim of service connection for tinnitus is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for asthma is remanded. Entitlement to service connection for a sinus disability is remanded. FINDING OF FACT After resolving reasonable doubt in the Veteran's favor, his hypertension is related to herbicide agent exposure in service. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 501, 1110, 1116, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to August 1969, with service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision by the Department of Veterans Affairs (VA). Although the Veteran initially requested a Board hearing, see February 2019 substantive appeal, he later withdrew that request. See March 2019 correspondence. As a result, the Board finds that it may proceed with adjudication. After reviewing the evidence of record, and in light of Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Board has recharacterized the issue of service connection for nasal polyps to encompass any sinus disability. Entitlement to service connection for hypertension. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The Veteran is diagnosed with hypertension. See, e.g., February 2019 VA treatment records. Because he served in Vietnam, see, e.g., military personnel records, in-service herbicide agent exposure is presumed. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Board notes that while hypertension is not recognized as a presumptive condition due to herbicide exposure, the National Academy of Sciences (NAS) has found in a recent study released on November 15, 2018, indicates that "[t]he latest in a series of congressionally mandated biennial reviews of the evidence of health problems that may be linked to exposure to Agent Orange and other herbicides used during the Vietnam War found sufficient evidence of an association for hypertension." NATIONAL ACADEMY OF SCIENCES, Hypertension Upgraded in Latest Biennial Review of Research on Health Problems in Veterans That May Be Linked to Agent Orange Exposure During Vietnam War (Nov. 15, 2018), available at: http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137. In sum, the medical evidence of record confirms that the Veteran has been diagnosed with, and is currently being treated for, hypertension. Hypertension is not listed in the applicable regulations as presumptively associated with exposure to certain herbicide agents. Thus, presumptive service connection is not warranted for this disability. However, based on the November 2018 NAS report concluding a positive association between hypertension and exposure to herbicide agents, the Board finds that the weight of the evidence is sufficient to show a nexus between the Veteran's hypertension and his in-service exposure to herbicide agents in Vietnam. There are no contrary opinions of record. As such, the Board will resolve reasonable doubt in the Veteran's favor and finds that all elements of service connection have been met. Therefore, service connection for hypertension is granted. REASONS FOR REMAND 1. Whether new and material evidence has been received to reopen a claim of service connection for tinnitus. In June 2014 VA treatment records, the Veteran reported that he had received private treatment. Because such records have not been sought, remand is necessary to attempt to obtain any private treatment records. 2. Entitlement to service connection for erectile dysfunction. The Veteran reported that he has erectile dysfunction as a result of his medications. See 2016 VA posttraumatic stress disorder (PTSD) examination. He is now service-connected for hypertension, PTSD, and coronary artery disease and takes medications for his disabilities. The Veteran's physician also noted that he could not take medication for his erectile dysfunction due to being on Terazosin, which the Veteran was taking for his hypertension. See June 2014 VA treatment records. Because there are medical questions outstanding, remand for a VA examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 3. Entitlement to service connection for a lumbar spine disability. Service treatment records (STRs) reflect a report of back pain. See May 1969 STRs. The Veteran's military occupational specialty was a heavy truck driver. See DD 214. VA treatment records reflect reports of back pain since April 2008 and that he was taking medication for his back pain at least as of October 2008. The Veteran underwent a VA examination in December 2018, wherein the examiner diagnosed lumbosacral strain with 2013 as a date of diagnosis. According to the examiner, the Veteran reported the onset of symptoms in 2013, but then stated that the condition began when he was a truck driver in Vietnam, due to the bumpy roads. The examiner ultimately opined that the Veteran's disability was less likely than not related to service because an August 2016 treatment records reflected a report by the Veteran that his low back pain started three to four months previously. The Board finds that the December 2018 VA examination is inadequate because it is based on an inaccurate factual premise. The examiner contradicted himself by stating the Veteran's back disability began in 2013 but then also stating it began sometime in 2016. Moreover, the examiner's statements are both contradicted by VA treatment record reflecting back pain as of April 2008 and the Veteran's report that his back pain began in service. Because the examination is inadequate, remand for a new examination is necessary. 4. Entitlement to service connection for asthma and a sinus disability. The Veteran is diagnosed with asthma and chronic rhinosinusitis with nasal polyps. See, e.g., June 2014 VA treatment records. Although treatment records indicate that these disabilities only began several years ago, see id., the Veteran once reported that he was "sprayed" with herbicide agents in Vietnam. See December 2007 VA treatment records. This indicates that he was more than just exposed to herbicide agents. Nonetheless, given the low requirements of McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), the Board finds that remand for respiratory and sinus examinations is warranted. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from December 2018 to the present. 2. The AOJ should obtain, if possible, records of relevant private evaluations and treatment the Veteran has received. The Veteran must assist in the matter by identifying his private healthcare providers and by submitting releases for VA to obtain any private records identified. 3. After the above development is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of his erectile dysfunction. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: Is it at least as likely as not (50% or greater probability) that the Veteran's erectile dysfunction was either caused or aggravated by the medications taken for his service-connected hypertension, coronary artery disease, or PTSD? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner must discuss June 2014 VA treatment records discussing that the Veteran could not take erectile dysfunction medication due to taking Terazosin. 4. After the development in the first two directives is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any lumbar spine disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: For each lumbar spine disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's military service? Please explain why. The examiner must discuss the Veteran's report that his condition began in service. The examiner may not rely solely on the absence of medical evidence after service. 5. After the development in the first two directives is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of his asthma. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: Is it at least as likely as not (50% or greater probability) that the Veteran's asthma (or any other respiratory disability diagnosed) was either incurred in or otherwise related to his exposure to herbicide agents, to include possibly being "sprayed" with herbicide agents? Please explain why. The examiner may not rely solely on the absence of evidence in medical literature or the absence of evidence in medical records. The examiner may not simply state that asthma is not presumptively related to herbicide agent exposure. 6. After the development in the first two directives is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any sinus disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please indicate, by diagnosis, all sinus disabilities present during the appeal period (from October 2015). (b.) For each sinus disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's exposure to herbicide agents, to include possibly being "sprayed" with herbicide agents? Please explain why. The examiner may not rely solely on the absence of evidence in medical literature or the absence of evidence in medical records. The examiner may not simply state that the disability is not presumptively related to herbicide agent exposure. 7. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, 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.