Citation Nr: 21071523 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 14-38 702A DATE: November 30, 2021 ORDER Entitlement to service connection for hypertension is granted. FINDINGS OF FACT 1. The Veteran has current diagnosis of hypertension. 2. The Veteran served in the Republic of Vietnam during the Vietnam era and is presumed to have been exposed to herbicide agents therein. 3. Epidemiologic evidence concludes that there is a positive association between hypertension and exposure to herbicide agents, including Agent Orange. 4. Resolving reasonable doubt in the Veteran's favor, his hypertension is at least as likely as not related to exposure to herbicide agents in service. CONCLUSION OF LAW The criteria for service connection for hypertension, to include as due to herbicide agent exposure, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably in the United States Army from November 1968 to September 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter is being adjudicated under the legacy appellate framework. The Veteran initially requested a personal hearing before the Board, but, in January 2016, the Veteran's representative indicated that the Veteran no longer desired a hearing. This matter was previously before the Board and in November 2018, the Board remanded this matter for further development. The claim was remanded again in July 2021 due to noncompliance with the November 2018 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). On review, the Board finds substantial compliance with its July 2021 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Pertinent Laws and Regulations 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 service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Establishing entitlement to direct service connection requires: (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 disability and the disease or injury incurred or aggravated during service - which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Hypertension The Veteran contends that his hypertension is related to service. As an initial matter, the Veteran is currently diagnosed with hypertension. See August 2021 VA examination report. Therefore, the Veteran meets the first element of a current disability. On the issue of in-service incurrence, the Veteran's service personnel records reflect that he served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 (the "Vietnam Era"), specifically from May 1969 to May 1970. See March 1970 Award of the Army Commendation Medal General Order. Therefore, he is presumed to have been exposed during such service to an herbicide agent such as "Agent Orange." 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Therefore, the Veteran meets the element for in-service incurrence. While certain diseases are presumptively service-connected due to herbicide agent exposure, hypertension is not among the enumerated diseases. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). Nevertheless, the fact that a veteran does not meet the requirements for service connection on a presumptive basis does not in and of itself preclude the establishment of service connection, as entitlement may alternatively be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). There are multiple medical opinions of record. In September 2019, a VA examiner opined that the Veteran's hypertension was less likely than not incurred in or caused by service. The examiner reasoned that because there was no evidence of hypertension during service, and medical records indicated a history of borderline hypertension on admission to Celebration hospital dated April 15, 2009, and upon discharge on April 27, 2009, the final diagnosis was hypertension and the Veteran was started on medication at that time. Based on that reasoning, the examiner concluded a nexus had not been established. The Board finds the September 2019 VA examination inadequate as the examiner did not provide an opinion, much less address the relationship, if any, between exposure to Agent Orange and hypertension, and instead only recited facts regarding the medical history of the Veteran. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As the examination was not adequate, it is not probative. In conjunction with the July 2021 remand, another examination and medical opinion were obtained in August 2021. The examiner opined that the Veteran's hypertension was at least as likely as not incurred in or caused by the in-service injury, event, or illness. The examiner explained that the Veteran was a Vietnam Veteran and was exposed to environmental chemicals to include Agent Orange and hypertension had been proven to be a risk from exposure to such chemicals. In support, the examiner referenced a study which showed a high-risk correlation between Agent Orange and hypertension. The referenced article was specific to hypertension risk in Army chemical corps veterans. A September 2021 addendum medical opinion, however, reversed the August 2021 opinion, now stating that after review of the evidence within 79 Fed. Reg. 20308, 2010 (April 11, 2014), which was ordered by the November 2018 remand, there was not enough medical evidence to conclude that his hypertension was due solely to the exposure to herbicide agents and therefore the hypertension was less likely than not directly due to the herbicide exposure or incurred during service. To note, 79 Fed. Reg. 20308, 20310 contained the 2012 updates from the National Academy of Sciences (NAS) within the December 2013 report regarding the establishment of presumptive service connection for certain health effects. See NAS December 2013 update report titled, Veterans and Agent Orange Update 2012. Pertinent to the case at bar, NAS placed hypertension in the "limited or suggestive evidence of association" category in that report. Another addendum was obtained in September 2021, and the examiner stated there were multiple articles addressed in 79 Fed. Reg. 20308, 20310 that were reviewed and "limited or suggestive evidence," meant not enough evidence to confirm a strong correlation between the two. The Board provides the August 2021 and both September 2021 opinions no probative weight. In neither of the opinions did the examiner reconcile why the evidence within 79 Fed. Reg 20308, 20310 was more probative than the article referenced within the examiner's August 2021 opinion. See Nieves-Rodriguez, supra. Furthermore, as noted above, the NAS report within 79 Fed. Reg. 20308, 2010 was from December 2013. On November 15, 2018, NAS, a part of the National Academies of Sciences, Engineering, and Medicine, moved hypertension to the category of "sufficient" evidence of an association from its previous classification in the "limited or suggestive" category," indicating that there was enough epidemiologic evidence to conclude that there is a positive association between hypertension and exposure to herbicide agents, including Agent Orange. See NAS November 2018 update report titled, Veterans and Agent Orange Update 11. The Board finds the study provided by the NAS, which is made up of experts in the given field of science, is probative evidence that is relevant here. Based on the relatively recent scientific evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran's hypertension is etiologically related to his exposure to herbicide agents while serving in Vietnam. As such, resolving reasonable doubt in the Veteran's favor, the Board finds that all elements of service connection for hypertension are met, and the appeal is granted. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moldawer, 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.