Citation Nr: 21072469 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-02 850 DATE: December 3, 2021 ORDER Entitlement to service connection for hypertension is granted. FINDING OF FACT The appellant's hypertension is at least as likely as not related to his presumed exposure to herbicide agents while in active service. CONCLUSION OF LAW The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty in the United States Army from March 1967 to March 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied entitlement to service connection for hypertension This decision was appealed in a notice of disagreement (NOD) received by VA in August 2015. A Statement of the Case (SOC) was issued by VA in December 2016. VA received the appellant's Substantive Appeal (Form 9) in January 2017, perfecting the appeal and requesting a hearing before a member of the Board. The appellant appeared before the undersigned Veterans Law Judge for a hearing in August 2019. A transcript of that hearing has been added to the record on appeal. This case was previously remanded by the Board in November 2019 so that VA could comply with the duty to assist in obtaining a medical opinion on the etiology of the appellant's hypertension. The claim was again remanded by the Board in March 2021 because the RO had failed to comply with the Board's previous remand instructions. The Board again remanded this claim in August 2021 for further development due to the RO failing to ensure an adequate medical opinion was obtained. Supplemental Statements of the Case (SSOC) were issued by VA in November 2020 and June 2021, and November 2021. 1. Entitlement to service connection for hypertension is granted. The appellant contends that his hypertension is at least as likely as not due to his presumed herbicide agent exposure, which occurred while he was serving on a Royal Air Force Base in Thailand. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a veteran must show: (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' the so-called nexus' requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that such veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). An herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 6, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases which are deemed to be associated with herbicide agent exposure do not include hypertension. Id. VA's Secretary has determined that there is no positive association between exposure to herbicide agents and any other condition for which VA has not specifically determined a presumption of service connection is warranted. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20,308 (Apr. 11, 2014). Despite the presumptive regulations, a claimant may establish service connection based on exposure to herbicide agents with proof of actual 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 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After a review of the evidence of record, the Board finds that it is at least as likely as not that the appellant's presumed herbicide exposure directly caused his development of hypertension. As such, the Board concludes that the criteria for entitlement to service connection for hypertension are met and that the claim should be granted. As noted above, entitlement to service connection requires evidence showing a current disability, an in-service disease or injury, and a nexus between the two. The Board notes that it has not been in dispute that the appellant is diagnosed with hypertension, for which he takes medication, and that he is legally presumed exposed to herbicide agents in Thailand while he was in active service. The question for the Board then is whether there is a link between the current disability and the herbicide exposure. To that end, the Board notes that in August 2021, a VA clinician provided an opinion indicating that the appellant's hypertension was caused by his herbicide exposure. The examiner opined that "[a]gent orange is an established primary etiology of hypertension." The examiner stated that this was borne out by the medical literature. The examiner reasoned that, since the appellant's exposure to agent orange is conceded, that it is at least as likely as not that his current hypertension is due to that exposure. The opinion was offered by a clinician competent to offer such an opinion, and was made after a review of the appellant's claims folder. It also provides a logically succinct analysis. As such, the Board affords the opinion significant probative weight. See Nieves - Rodriguez v. Peake, 22 Vet. App. 295 (U.S. 2008) (explaining that most of the probative value of a medical opinion comes from its reasoning). The Board has previously found the opinions which found no link between the appellant's hypertension and his herbicide agent exposure inadequate. Therefore, the Board does not have any probative medical evidence to weigh against the August 2021 medical opinion. Consequently, the Board finds that after a review of all the evidence of record, it is at least as likely as not that the appellant's hypertension is due to his in-service exposure to herbicide agents. As such, the Board, granting the appellant the benefit of the doubt, concludes that the criteria for entitlement to service connection for hypertension are met. 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kleponis, 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.