Citation Nr: 21073917 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 15-42 529 DATE: December 13, 2021 ORDER Reopening of previously denied claim of service connection for hypertension (HTN) is granted. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure, is granted. FINDINGS OF FACT 1. Denial of service connection for hypertension was confirmed in an unappealed April 2010 rating decision because new and material evidence had not been submitted; the underlying June 1997 denial was based on a lack of nexus to service. 2. Evidence submitted since April 2010 was not previously submitted, relates to an unestablished fact necessary to substantiate the claim; and is not cumulative or redundant. 3. Hypertension is etiologically related to the Veteran's in-service herbicide exposure. CONCLUSIONS OF LAW 1. The April 2010 rating decision denying service connection for hypertension is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria for reopening of previously denied claim of service connection for hypertension have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for hypertension, to include as due to herbicide agent exposure have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the U.S. Air Force from October 1964 to October 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). In October 2018, the Board denied a reopening of a previously denied claim of service connection for HTN. The Veteran filed an appeal to the Court of Appeals of Veterans Claims (the Court) contesting the Board's October 2018 decision. In April 2021, the Court issued a Memorandum Decision, the Court vacated and remanded the Board's decision for further consideration. The matter is now before the Board again for further appellate review. The Court held that the Board erred by failing to address the Veteran's lay evidence and properly consider an associated and newly raised theory of entitlement based on herbicide exposure. New and Material Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The April 2010 and previous rating (June 1997) decision denied service connection for HTN on the basis that there was no nexus to service was established. The Veteran failed to appeal this rating decision, and it became final. Since that time, the Veteran provided competent evidence of service in Thailand which included lay statements indicating service in Thailand, and also stated that his guard duty and duties on the flight line brought him to the base perimeter, exposing him to tactical herbicides. Such information is new and material, and reopening is warranted. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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). Service connection may also be granted for 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). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). The Veteran contends that his HTN was related to his exposure to herbicides. In a May 2009 statement, the Veteran wrote that he served in Korat, Thailand the entire year of 1967. He noted that he was a jet fighter mechanic on the F-105 aircraft which flew low bombing missions over North Vietnam. He also indicated that he worked the entire year on the flight line doing aircraft maintenance work. He wrote that he might have been exposed to herbicides, during that time. On June 2013 notice of disagreement (NOD), he wrote that he was required to perform periodic guard duties, which placed him at the perimeter of the based. He indicated that he was exposed to herbicides while performing guard duties at the perimeter of Korat Air Force base. He noted that all unit members were expected to participate in guard duty on a rotating schedule. This was not part of the Veteran's MOS, just part of what was expected of the occupants of the base. The Veteran provided competent evidence of service in Thailand which included lay statements indicating service in Thailand, and stated that his guard duty and duties on the flight line and perimeter of the base, exposed him to tactical herbicides. The specific circumstances of service must be considered, as demonstrated by service records and other evidence. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran provided evidence which included the Veteran's lay statements regarding his service along the perimeter of the base in Thailand. Moreover, VA has conceded the use of herbicides along the perimeter of Royal Thai Air Force bases during the Vietnam era. The Board notes the AOJ conceded the Veteran's exposure while stationed in Thailand. See April 2020 rating decision. VA treatment records documented that Veteran was diagnosed HTN. Thus, the only remaining question is that of a nexus. VA laws and regulations provide that if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). 38 C.F.R. § 3.309(e). Hypertension is not currently listed as a presumptive condition for Agent Orange exposure; thus, service connection cannot be awarded on a presumptive connection to service. Turning to consideration of the claim on a direct basis, in November 2018 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 is enough epidemiologic evidence to conclude that there is a positive association between hypertension and exposure to herbicides, including Agent Orange. The Board is charged with knowledge of this study and conclusion. Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021). Based on this new finding, the Board finds that there is sufficient scientific evidence to etiologically link the Veteran's HTN to his presumed exposure to herbicides while serving in Thailand. Service connection is warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Baxter 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.