Citation Nr: 21072657 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 16-01 787 DATE: December 3, 2021 ORDER Entitlement to service connection for a heart condition, to include hypertension, is denied. FINDING OF FACT The most probative evidence establishes that the Veteran's heart condition was not caused or is otherwise attributable to service, and is not subject to presumptive service connection due to herbicide exposure under 38 C.F.R. § 3.309(e). CONCLUSION OF LAW The criteria for entitlement to service connection for a heart condition, to include hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 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 January 1968 to March 1970, including active service in The Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. The case was most recently remanded by the Board in April 2019 for further development. That development having been completed, the case is once again before the Board. Under 38 U.S.C. § 7104 (2018), Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Entitlement to service connection for a heart condition to include hypertension Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2018); 38 C.F.R. § 3.303 (2018). A Veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Presumptive Service Connection Direct service connection requires competent evidence of a current disability, a precipitating in-service event, and a causal connection between such an event and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). There are also numerous ways to establish a presumptive service connection. For instance, "[i]n 1991, Congress passed the Agent Orange Act, codified at 38 U.S.C. § 1116, granting a presumption of service connection for certain diseases to veterans who served in... Vietnam" during the Vietnam era. Procopio v. Wilkie, 913 F.3d 1371, 1373 (Fed. Cir. 2019) (quotation marks omitted). Initially, the phrase "service in the Republic of Vietnam" meant service only on Vietnam's landmass and inland waterways. Effective January 29, 2019, the meaning of this phrase was expanded to encompass service within Vietnam's 12-nautical-mile territorial sea. Id. Assuming a Veteran establishes that, during the Vietnam era, (s)he served in Vietnam within the parameters set forth in Procopio, VA regulations allow him/her to obtain service connection for certain diseases when the evidence might otherwise not indicate that service connection is warranted. See 38 C.F.R. § 3.303(d). Specifically, 38 C.F.R. § 3.307 provides that a Veteran who served in Vietnam from January 9, 1962, to May 7, 1975, is presumed to have been exposed to a tactical herbicide agent, to include Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during his/her service. See 38 C.F.R. § 3.307(a)(6)(iii). However, here, service connection for the Veteran's hypertension cannot be awarded based on a theory of presumptive exposure to tactical herbicides because this particular disability is not one of the enumerated chronic diseases amenable to a presumptive service connection under 38 C.F.R. § 3.309(e). Direct Service Connection Despite the foregoing, when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). The medical evidence of record shows that the Veteran had a diagnosis of hypertension (May 2005) and nonischemic cardiomyopathy in the setting of hypertension (February 2013). This satisfied the first element of service connection. The Veteran does not contend, and the record does not show, that hypertension was present in service. The Veteran contends that he was exposed to Agent Orange while serving in Vietnam. The Veteran has been granted a presumptive exposure to Agent Orange. Thus, the second element, an in-service incurrence, has been conceded. Having established the presence of a current disability and in-service injury, the Board turns to the dispositive issue of nexus. The Board finds, for the reasons noted below, that the third requirement for service connection, competent evidence of a nexus between the current heart condition and in-service tactical herbicide exposure, has not been met. The Veteran was afforded a VA examination in August 2014 in which the examiner opined that the Veteran's hypertension and past history of alcohol abuse are at least as likely as not responsible for his congestive heart failure, and not due to ischemic heart disease. See August 2014 VA examination. As described by the April 2019 Board remand, this opinion is not adequate for adjudication purposes because the examiner failed to discuss whether the said hypertension is directly related to active duty service. In a December 2019 addendum opinion, the VA examiner could not provide an opinion without resorting to mere speculation if hypertension has a causal association with Agent Orange. The examiner explained that there are many other risk factors and a high prevalence of hypertension in the general population. The examiner considered the National Academy of Science, which upgraded hypertension to the category of "sufficient" evidence of an association. The examiner went on to state that causality can only be inferred if it becomes an Agent Orange presumptive condition. It is well established that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). It must be noted that although an association might be shown, there is no evidence of a direct causal relationship between Agent Orange exposure and the development of hypertension. In light of the above analysis, the weight of the evidence does not establish a nexus between the Veteran's in-service presumptive exposure to Agent Orange and the Veteran's hypertension. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. Therefore, the appeal must be denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Nelson, 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.