Citation Nr: 21074183 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-55 592 DATE: December 14, 2021 ORDER Service connection for hypertension, including secondary to presumed in-service Agent Orange exposure is granted. REMANDED Service connection for residuals of a stroke, to include secondary to service-connected hypertension, and due to presumed in-service Agent Orange exposure is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, his hypertension cannot be satisfactorily disassociated form his presumed in-service Agent Orange exposure. CONCLUSION OF LAW The criteria for service connection for hypertension due to presumed in-service exposure to Agent Orange have been met. 38 U.S.C. § 1110; 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 in the United States Army from June 1968 to June 1971. This matter is before the Board of Veterans' Appeals (the Board) on appeal from the September 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision, inter alia, denied service connection for residuals of stroke and confirmed the previous denial of service connection for hypertension. The Veteran's Notice of Disagreement (NOD) was received in November 2015. The Statement of the Case was issued in October 2017, and the Veteran's VA Form 9, substantive appeal to the Board, was received in October 2017. In February 2021, the Veteran, his representative, and his spouse, appeared before the undersigned Veterans Law Judge (VLJ) for a Board virtual hearing. The transcript is of record. In April 2021, the claims were remanded for further development and adjudication. Entitlement to service connection for hypertension, to include secondary to Agent Orange exposure. The Veteran seeks service connection for hypertension. He contends that his hypertension is related to his presumed Agent Orange exposure. The Veteran has qualifying service in the Republic of Vietnam and is thus presumed to have been exposed to herbicides agents, including Agent Orange. 38 C.F.R. § 3.307 (a)(6)(iv). Alternatively, the Veteran contends that hypertension was an early symptom of his service-connected ischemic heart disease (IHD). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1111, 1137; 38 C.F.R. § 3.303. Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See 38 U.S.C. § 1131 (2012); Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Then, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The term "hypertension" means that the diastolic blood pressure is predominantly 90 mm. or greater, or systolic blood pressure is predominantly 160 or more. 38 C.F.R. § 4.104, DC 7101 n.1. A diagnosis of hypertension "must be confirmed by readings two or more times on at least three different days." Id. The requirement of multiple blood pressure readings to be taken over multiple days as specified in Note (1) of DC 7101 applies to confirming the existence of hypertension. Gill v. Shinseki, 26 Vet. App. 386, 391 (2013). For veterans who are presumed to have been exposed to certain herbicide agents, including Agent Orange; or, for those veterans who are not entitled to the presumption of exposure, but who have otherwise established exposure to herbicide agents on a direct basis, certain diseases are presumed to be due to that exposure. Hypertension is not one of the diseases covered under the presumption. See 38 C.F.R. §§ 3.307 (a)(6); 3.309(e). However, in November 2018, the National Academy of Sciences (NAS) upgraded hypertension from the "limited or suggestive evidence" category to the "sufficient evidence" category, indicating that there was enough epidemiologic evidence to conclude that there is a positive association between hypertension and herbicide agent exposure in Vietnam. See Veterans and Agent Orange: Update 11 (2018), Table S-1 and footnote 1. Additionally, although the hypertension is not one of the diseases enumerated under the herbicide exposure presumption, the Veteran is not precluded from establishing service connection due to herbicide exposure on a direct basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). The Veteran service treatment records (STRs) do not contain complaints or treatments for hypertension. A January 2002 VA treatment note indicates that the Veteran had borderline hypertension diagnosed in the 1970's. The same note indicates that the Veteran had a cardiac catheter complete and was notified that he had a weak heart muscle at the tip, but that no surgery was recommended. However, the Veteran's file does not contain the January 2002 cardiac catheter report. A July 2011 private treatment note indicates that the Veteran had paroxysmal supraventricular tachycardia. In September 2015, the Veteran underwent a VA examination for his claim. The VA examiner noted that the Veteran's hypertension was diagnosed in the 2006 timeframe and that his stroke was in 2011. The VA examiner concluded that the Veteran's hypertension was not due to or the result of IHD because hypertension was diagnosed before IHD. Pursuant to the April 2021 Board remand, the September 2015 VA medical opinion is incomplete to the extent that it did not provide a definite timeline for the onset of the Veteran's hypertension and IHD, or address the Veteran's contention that hypertension was an early symptoms of his IHD. An addendum VA medical opinion was requested to address a complete timeline of onset and etiology of the Veteran's hypertension and IHD. In June 2021, the Veteran underwent a VA examination for his claim. The VA examiner noted that the Veteran was diagnosed with hypertension in the 1970's. It was noted that the Veteran had elevated blood pressure on routine examination and was started on Fosinopril. His hypertension was noted to asymptomatic. He was noted to be taking Lisinopril and Carvedilol, which were required continuously. The VA examiner noted that it was unknown whether the Veteran's initial hypertension diagnosis was confirmed by blood pressure readings taken 2 or more times on at last 3 different days. The Veteran's current blood pressure readings were listed as 147/79, 145/79, and 141/78. The VA examiner indicated that it is less likely than not that the Veteran's hypertension was related to a disease or injury in service, to include exposure to herbicides during service, and secondary to the Veteran's IHD. The VA examiner indicated that the Veteran reportedly developed hypertension in the 1970's and that his CAD occurred in 2015. Therefore, CAD did not cause hypertension. With respect to the Veteran's contention that hypertension was an early symptom of his service-connected IHD, the VA examiner indicated that hypertension is not a symptom of IHD, listing out the common symptoms. In August 2021, VA obtained an addendum medical opinion. With respect to secondary service connection, the VA examiner noted that the Veteran was diagnosed with hypertension in 1970's and a 2000 cardiac catheterization showed no epicardial disease. The VA examiner concluded that therefore, the Veteran's CAD caused hypertension. However, with respect to direct service connection, the VA examiner indicated that while there are no service medical reports available to determine this, there is some evidence of increased risk of hypertension in people exposed to Agent Orange, citing medical literature. Then, in September 2021, another addendum medical opinion was obtained. The VA examiner provided a positive nexus opinion and indicated that the previous opinion should remove the words "while there are no service medical reports available to determine this." Based on the entire review of the record, the evidence is at least in relative equipoise as to whether the Veteran's hypertension is related to his presumed in-service Agent Orange exposure. As such, service connection is granted. The record reflects that the Veteran has a current diagnosis of hypertension, as confirmed by the June 2021 VA examination report and his VA treatment records. While the Veteran's records do not indicate that his initial diagnosis was confirmed by at least two elevated readings as required by VA regulations, two separate VA examiners confirmed the Veteran's diagnosis despite the records lacking the readings. Moreover, the Veteran is on medication for hypertension and it is being followed by his VA providers. The Veteran is also presumed to have been exposed to Agent Orange, satisfying the in-service injury or event requirement. Accordingly, the remaining question is whether it is at least as likely as not that the Veteran's hypertension is related to his presumed in-service Agent Orange exposure. With respect to a nexus, the evidence is at least in relative equipoise. As previously noted, while hypertension is not a disability enumerated under the herbicide exposure presumption, the NAS indicated that there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and herbicide agent exposure in Vietnam. Moreover, the September 2021 VA medical examiner provided a positive nexus opinion and cited appropriate medical literature in support of that conclusion. Finally, the Veteran consistently reported that he was diagnosed with borderline hypertension in the 1970's, several years after service. There is no evidence to the contrary, and the June 2021 VA examination report does not contradict these reports. Thus, the evidence is at least in relative equipoise as to whether the Veteran's hypertension is related to his presumed in-service Agent Orange exposure. In sum, the evidence establishes that the Veteran has been diagnosed with hypertension and is presumed to be exposed to Agent Orange in service. The evidence is at least in relative equipoise as to whether his hypertension is related to his presumed in-service exposure. With all reasonable doubt resolved in the Veteran's favor, service connection is granted. REASONS FOR REMAND Entitlement to service connection for residuals of a stroke. The Veteran contends that he first developed hypertension, then IHD, and then had a stroke, with lasting residuals. He contends that his stroke was caused by hypertension and IHD. In September 2015, the Veteran underwent a VA examination for his claim. He reported that he had transient ischemic attacks (TIA) in January 2002, August 2009, and September 2010, with a cerebrovascular accident (CVA) in June 2011. For symptoms, the Veteran was noted to have muscle weakness in the upper and/or lower extremities and voiding dysfunction. He was noted to use a cane for an abnormal gait. The VA examiner concluded that the Veteran's IHD did not aggravate his TIAs, as the TIAs were well before the diagnosed IHD. For baseline effects, the VA examiner noted right sided hemiparesis. The VA examiner also noted that there are no increased manifestations of the IHD due to the Veteran's stroke. Pursuant to the April 2021 Board remand, the September 2015 VA medical opinion is incomplete to the extent that it did not provide a definite timeline for when the Veteran developed his cardiac disability. An addendum VA medical opinion was requested to establish a detailed timeline of onset and etiology of the Veteran's IHD. Specifically, the VA examiner was requested to address the January 2002 VA treatment note indicating that the Veteran had a cardiac catheter showing a weak heart muscle and the July 2011 diagnosis of paroxysmal supraventricular tachycardia. In June 2021, the Veteran underwent a VA examination for his claim. The VA examiner noted a January 2002 thrombosis, TIA, or cerebral infarction diagnosis. Under history, it was noted that the Veteran had 3 TIAs, in January 2002, August 2009, and September 2010. It was further noted that in June 2011, the Veteran was found on the floor unable to talk, was taken to the hospital, diagnosed with a stroke, and had weakness on the right side. It was also noted that the Veteran was in rehabilitation for 4 weeks and still has right side weakness. His disability was noted to require continuous use of aspirin. The Veteran also underwent a VA examination for his heart disability. It was noted that he was diagnosed with CAD and acute, subacute, or old myocardial infarction in 2015. Under history, it was noted that the Veteran developed chest pressure, dizziness, and weakness in 2015, was hospitalized, and told that he had prior silent myocardial infarction. With respect to the Veteran's stroke residuals, the June 2021 VA examiner concluded that it was less likely than not related to service. The VA examiner indicated that the Veteran's stroke did not occur until approximately 40 years after service and therefore was not related. The VA examiner also concluded that CAD occurred in 2015, after the Veteran's 2011 stroke, and therefore did not cause the stroke. With respect to the above question regarding addressing the Veteran's January 2002 VA treatment note and July 2011 diagnosis, the VA examiner reprinted the question, but left the response blank. The August 2021 VA medical addendum opinion merely noted that an April 2016 VA treatment note mentioned a 2000 cardiac catheterization showing no significant epicardial disease, providing the same timeline. In this case, the Veteran alleges that his stroke was caused his hypertension and IHD. The VA examiner was requested to provide a timeline for onset of the Veteran's cardiac disability and address the January 2002 VA treatment note mentioning a weak heart muscle and the July 2011 diagnosis of paroxysmal supraventricular tachycardia. Previous VA examiners cited the Veteran's records indicating that there was no history of cardiac disability. However, those two notations were never addressed. Accordingly, the June 2021 and August 2021 VA did not provide the requested nexus opinion regarding a timeline of onset of the Veteran's cardiac disability while addressing the aforementioned records and an addendum medical opinion is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the Veteran has been granted service connection for hypertension pursuant to instant Board decision. The Veteran contended that hypertension caused his stroke. However, this theory of entitlement was not previously addressed the RO as the Veteran's hypertension was not a service-connected disability. The RO should also obtain a VA medical opinion with respect to the nexus between the Veteran's hypertension and his stroke. Accordingly, the claim is remanded for further development and adjudication. This matter is REMANDED for the following action: 1. To all extent possible, obtain any outstanding VA or other treatment records and associate them with the file, including, but not limited to, the Veteran's January 2002 cardiac catheterization report. All attempts to obtain the requested documents should be documented. 2. Obtain an addendum medical opinion on the issue of service connection for residuals of a stroke. The claims file, including a copy of this and April 2021 remands must be available to the examiner for review, and the examiner should indicate that the claims file was reviewed in connection with providing the opinion. The VA examiner is requested to opine as to: 3. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's stroke residuals are etiologically related to active military service, to include secondary to his service-connected hypertension and his service-connected IHD. 4. In providing this opinion, the VA examiner is requested to obtain an accurate timeline regarding onset of the Veteran's IHD, including addressing the January 2002 VA treatment note indicating that the Veteran had a cardiac catheter showing a weak heart muscle and the July 2011 diagnosis of paroxysmal supraventricular tachycardia. An opinion that does not address these two records is considered incomplete. 5. The VA examiner is requested to provide a full rationale for all conclusions reached. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kuksova, Kseniya 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.