Citation Nr: 21067276 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 15-26 688 DATE: November 3, 2021 ORDER New and material evidence having been submitted, reopening of the claim of entitlement to service connection for hypertension is granted. Entitlement to service connection for hypertension is granted. Entitlement to service connection for hypertensive retinopathy secondary to hypertension is granted. Entitlement to service connection for tuberculosis, to include as secondary to PTSD is denied. FINDINGS OF FACT 1. The evidence associated with the claims file since the October 2013 rating decision is not cumulative or redundant and raises a reasonable possibility of substantiating the claim for service connection for hypertension 2. Hypertension is due to the Veteran's in-service exposure to herbicide agents during service in the Republic of Vietnam 3. The Veteran's hypertensive retinopathy is caused or aggravated by his service-connected hypertension. 4. The Veteran's tuberculosis is not secondary to service-connected treatment for PTSD, and is not otherwise related to an in-service injury or diseas.. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are met due to exposure to herbicide agents. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for hypertensive retinopathy as secondary to hypertension are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for tuberculosis due to service or as secondary to treatment for PTSD are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from March 1970 to January 1972, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims were previously remanded by the Board in a May 2021 decision. The Board finds that the RO has substantially complied with the May 2021 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Claim to reopen service connection for hypertension In a final October 2013 decision, the RO denied the Veteran's claim for service connection for hypertension because the evidence did not show a link between the disability and service. In a July 2015 application, the Veteran submitted a new claim for service connection for his eye condition due to Agent Orange. In a July 2021 VA addendum opinion, the VA examiner concluded that the Veteran's eye condition, diagnosed as hypertensive retinopathy, was secondary to hypertension. The examiner also opined that the Veteran's hypertension was the result of exposure to herbicide agents including Agent Orange while serving in the Republic of Vietnam. In a 2018 update, the National Academy of Sciences (NAS) recently determined that there is "sufficient" epidemiologic evidence to conclude that there is a positive association between hypertension and herbicide exposure. The Court of Appeals for the Federal Circuit has recently held that the NAS Update reports are constructively before the Board when they are relevant to the Veteran's claims. Euzebio v. McDonough, 989 F.3d 1305, 1326 (Fed. Cir. 2021) Furthermore, the Board finds that a claim for entitlement to service connection for the Veteran's underlying hypertension has been reasonably raised by the record and is part and parcel of the claim for service connection for hypertensive retinopathy. 38 C.F.R. § 3.155 (d)(2). Thus, the Board finds there is new and material evidence to warrant a reopening of the Veteran's claim for service connection for hypertension. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (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; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has asserted that his hypertension and hypertensive retinopathy are due to exposure to herbicide agents. The Veteran was exposed to herbicides during his Vietnam service. However, these disabilities are not one of the enumerated disorders presumed due to exposure to herbicide agents under 38 C.F.R. § 3.309(e). Nevertheless, the Veteran may still establish service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 1. Entitlement to service connection for hypertension 2. Entitlement to service connection for hypertensive retinopathy secondary to hypertension The Veteran contends that his hypertensive retinopathy, and by extension, his hypertension, is related to exposure to herbicide agents in the Republic of Vietnam. The Veteran has current diagnosis of hypertension and hypertensive retinopathy as evidenced by March and May 2021 VA medical records and the July 2021 VA medical opinion. In its Veterans and Agent Orange: Update 11 (2018), the National Academies of Sciences, Engineering and Medicine (NAS) found sufficient evidence of an association for hypertension and exposure to Agent Orange and other herbicides used during the Vietnam War. At the August 2020 Board hearing, the Veteran's representative specifically cited the study as evidence of the association between the Veteran's hypertension and his exposure to herbicide agents in the Republic of Vietnam. In a July 2021 VA medical opinion, the VA medical examiner concluded that it is at least as likely as not that the Veteran's exposure to herbicide agents while serving in Vietnam caused his hypertension, which, in turn, resulted in his hypertensive retinopathy. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for hypertension, and by extension, hypertensive retinopathy is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for tuberculosis, to include as secondary to PTSD The Veteran contends that his tuberculosis is due to exposure while under treatment for PTSD at a VA medical center. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection. 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. The question for the Board is whether the Veteran has a current disability of tuberculosis that is proximately due to or the result of, or was aggravated beyond its natural progress by service-connected PTSD. An October 2015 VA medical record indicates that the Veteran was started on treatment for latent TB in 2009. The medical record indicates the Veteran has no active symptoms and was recommended to discontinue treatment in 2011. Thus, the Board finds that resolving reasonable doubt in favor of the Veteran, he has a current disability of latent TB. The Board concludes that, while the Veteran has a current disability of latent asymptomatic TB, the preponderance of the evidence is against finding that the Veteran's latent asymptomatic TB is proximately due to or the result of, or aggravated beyond its natural progression by a service-connected disability, to include PTSD. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The August 2021 VA examiner opined that the Veteran's latent asymptomatic TB is instead more likely due to an exposure outside the VA medical center because a positive PPD test requires 4 to 10 weeks minimum from exposure to result in a positive PPD. The rationale was that it was all but certain the Veteran contracted the positive exposure prior to admission. The examiner also noted that the likelihood of nosocomial TB infection in a non-pulmonary ward is infinitesimally small. Thus, the examiner concluded it is less likely than not that the Veteran's TB exposure occurred while admitted for PTSD in 2009. The examiner also indicated there was no aggravation of his TB due to any cause as it is unclear whether the Veteran ever had any symptoms of TB or an active TB infection, and so there was no condition to aggravate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), Barr v. Nicholson, 21 Vet. App. 303 (2007), Stefl v. Nicholson, 21 Vet. App. 120 (2007), Prejean v. West, 13 Vet. App. 444 (2000). The Veteran his latent asymptomatic TB is the result of an exposure during treatment for a service-connected disability. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology and the interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the August 2021 VA examiner's opinion. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, Associate 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.