Citation Nr: 21064642 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 18-28 336 DATE: October 21, 2021 ISSUE Entitlement to service connection for hypertension, to include as due to Agent Orange exposure. ORDER Entitlement to service connection for hypertension, to include as due to Agent Orange exposure, is granted. FINDING OF FACT The evidence shows that it is likely as not (50 percent or more probability) that the Veteran's hypertension was caused by his service, to include his presumed exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for hypertension have been met. 38 U.S.C. § 1110 ; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1966 to February 1968, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office. In August 2019 and February 2020, the Board remanded the claim for additional development. The Board finds that there has been substantial compliance with its remand directives and therefore decides the matter herein. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to service connection for hypertension, to include as due to exposure to Agent Orange, is granted. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.§ 1110; 38 C.F.R.§ 3.303. Service connection requires competent evidence showing: (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 (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service incurrence for certain diseases will be presumed on the basis of an association with certain herbicide agents (e.g., Agent Orange). 38U.S.C. §1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Such a presumption, however, requires evidence of actual or presumed exposure to herbicides. Veterans who, during active 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 to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. §§ 1116; 38C.F.R. § 3.307. A Veteran who served on land in Vietnam is presumed to have had such exposure. VA has extended this presumption to Veterans who served in other areas where Agent Orange is known to have been used. Id. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310 Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection with proof of direct causation. 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); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155, 160 (1998). Thus, presumption is not the sole method for showing causation. In this case, the Veteran has a current diagnosis of hypertension. See, e.g., January 2021 VA examination. VA has conceded that the Veteran was presumed to have exposure to herbicide agent during his service in Vietnam. However, it was noted that hypertension is not a disorder or deceases listed under 38 C.F.R. § 3.309 (e). As such, the presumptive service connection for hypertension is not available. The Board must consider whether service connection can be granted on a direct basis. As noted in the record, the National Academy of Sciences (NAS) had indicated that there was "sufficient evidence of association" between in-service tactical herbicide exposure and hypertension. See Nat'l Acad. of Sci., Inst. of Med., Veterans & Agent Orange: Update 2018 (the 11th edition). The Veteran was afforded a VA examination in October 2015. However, in August 2019 the Board remanded the matter for an addendum opinion regarding the updated NAS information noted above. The Veteran was then afforded a VA examination in January 2020, however, in a March 2020 Board remand, the Board founds that the examiner did not critically examine this statement or render any etiology opinion of his own. Therefore, the Board considers the VA examination reports and opinions provided following the last Board remand in March 2020. Considering the February 2021 VA opinion, the Board notes a positive nexus opinion, with the examiner finding that "[t]he claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness." The examiner noted that the Veteran had no issues related to the claimed hypertension prior to military service and found that the Veteran's current diagnosis of hypertension is related to the exposure to Agent Orange as there is evidence of chronicity and nexus established. The examiner specifically considered the 2018 Agent Orange update and noted that "the committee found that this body of literature constituted sufficient evidence of an association between Agent Orange and hypertension." Moreover, the examiner reported that the Veteran "did not have high blood pressure prior to service and that following service there are no medical records until 2008 when the Veteran was found to have high blood pressure and elevated blood sugar. He had high blood pressure readings on three separate doctor visits in 2008 however was not started on medications and opted for lifestyle modifications. He was not seen again until 2012. At that time a formal diagnosis of hypertension and diabetes was made. He was started on treatment for both conditions." (Continued on next page.) The Board further notes that the February 2021 VA medical opinions indicate aggravation of the Veteran's hypertension due to the Veteran's service-connected heart condition and diabetes. However, the Board finds that given the nexus opinion noted above, the claim for service connection for hypertension is granted on a direct basis, as the evidence makes it at likely as not (50 percent or more probability) that the Veteran's hypertension was caused by his service, to include exposure to herbicide agents. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for hypertension, to include as due to Agent Orange exposure, is warranted on a direct basis. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Tunis, 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.