Citation Nr: 21074987 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 19-11 854 DATE: December 16, 2021 ORDER Entitlement to service connection for hypertension is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's current hypertension is related to service, to include presumed herbicide agent exposure. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for hypertension have been 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 Veteran had active duty service from March 1964 to February 1966, including in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 Regional Office (RO) rating decision which, in pertinent part, denied service connection for hypertension. The Board previously remanded this case in November 2019, December 2020, and June 2021 for further development. The claim has been returned to the Board for appellate review. Hypertension Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that 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, including Agent Orange, 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). Hypertension is not currently among the enumerated diseases presumptively service connected. 38 C.F.R. § 3.309(e). Nonetheless, the Board takes constructive notice that a November 2018 report from the National Academy of Sciences, Engineering and Medicine (NAS) moved hypertension into the category of "sufficient" evidence of an association from its previous classification in the "limited or suggestive" category. NAS, Veterans and Agent Orange: Update 11 (2018) (referenced below as November 2018 NAS Agent Orange Update). Service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide agent exposure. See also 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). VA regulations define hypertension as diastolic blood pressure as predominantly 90mm. or greater, and isolated systolic hypertension as systolic blood pressure predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm, and also provide that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. See 38 C.F.R. § 4.104, DC 7101, Note 1. Multiple blood pressure readings to be taken over multiple days as specified in Note (1) of DC 7101 applies only to confirming the existence of hypertension. Gill v. Shinseki, 26 Vet. App. 386, 391 (2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. STRs do not show any complaints or treatment for hypertension. The February 1966 separation examination is incomplete, but the completed portion shows a blood pressure reading of 130/78. An accompanying Report of Medical History includes family history report that the Veteran's father died at age 40 due to a heart attack and that the Veteran denies having or ever having high or low blood pressure. Service records confirm that the Veteran was stationed in Vietnam from August 1965 to March 1966. October 2020 VA primary care records reflected that the Veteran had a normal blood pressure reading. However, he was treated for hypertension with medication. The clinician assessed hypertension, stable on Propranolol. In October 2020, the Veteran reported that he served in Vietnam. While there, his wife was involved in a serious motor vehicle accident (MVA). He requested an early separation and was quickly processed without noting any medical problems in order to see his injured wife. Since service, he had hearing loss from noise exposure due to outgoing shells at his base camp and headaches. He stated that he was the youngest of eight siblings and that none of them had hypertension or heart problems. In October 2020, the Veteran had a VA-contract hypertension examination with a physician. The physician diagnosed hypertension with a 1990s onset during a routine medical visit. It was currently treated with medication. Present blood pressure readings were within normal limits. The physician furnished a negative medical opinion. He stated that the record included a report that the Veteran's father died of heart disease at age 40. He stated that the Veteran's family history was more of a risk factor than herbicide agent exposure. He noted the November 2018 NAS Agent Orange Update. In January 2021, the Veteran reported that he managed supplies for a Vietnam base, including ammunitions, weapons and deceased service members' personal items. Notably, he witnessed outgoing artillery fire every night and was sprayed with Agent Orange. He believed his Army service caused him to develop high blood pressure. In February 2021, a VA-contract physician furnished a medical opinion. He was unable to provide a non-speculative medical opinion. He reported that there was no defined etiology for hypertension, only risk factors. The Veteran had several risk factors related to hypertension. He observed the initial onset of hypertension was not clear from the medical records. Herbicide exposure had not been shown to a be sole etiology or more significant risk factor than the eight other listed risk factors. He noted the November 2018 NAS Agent Orange Update suggested an association between Agent Orange and hypertension but not causation, which was similar to all risk factors as stated above. In August 2021, the Veteran had a VA-contract examination with a different physician. The physician diagnosed hypertension with a 1990s onset. It was reportedly discovered during a routine medical examination. The Veteran had a hypertension medication regimen. Current blood pressure readings were 152/92, 144/96 and 158/101. The physician issued a negative medical opinion. He cited the February 1966 separation examination reflecting a normal blood pressure reading. The Veteran stated that he was first diagnosed with hypertension in the 1990s. The physician was unaware of any medical literature finding a relationship between Agent Orange exposure and hypertension. He noted seven risk factors for hypertension and cited supporting medical literature. In a September 2021, the August 2021 VA-contract physician furnished an addendum medical opinion with consideration of the November 2018 NAS Agent Orange Update. He stated that if VA considered delayed onset presentation of hypertension directly due to Agent Orange exposure, then the claimed condition was service connected. If the VA did not consider Agent Orange exposure as causative of hypertension, then hypertension was not service connected. It was beyond his scientific expertise to speculate if Agent Orange had been proven to cause hypertension. In November 2021, the Veteran stated that did not remember having a blood pressure measurement at separation. The only thing he remembered was turning in his clothes as he was rushing to see his wife who was recovering from an MVA. He believed military events were a major cause of his hypertension with Agent Orange being one part. For the following reasons, the evidence for a relationship to presumed herbicide agent exposure is evenly balanced and service connection for hypertension is warranted. As an initial matter, the Board notes the specific clinical requirements for diagnosing hypertension. 38 C.F.R. § 4.104, DC 7101 n.1. The Board considers these requirements to apply where the existence of hypertension is in doubt, such as an isolated, elevated blood pressure reading or multiple blood pressure readings with inconsistent findings. In this case, October 2020 VA primary care records and clinical findings from the August 2021 VA-contract examination report reflect an established hypertension diagnosis under medication management and elevated blood pressure. There is no conflicting medical evidence as to the hypertension diagnosis. In this case, the Board finds the medical evidence sufficient to confirm the existence of hypertension. Id. The Board has considered the Veteran's reports. He is competent to report about readily observable symptoms associated with hypertension, circumstances of his service, and his medical history. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007). He reports that the circumstances of his service were very stressful and that he was initially diagnosed with hypertension in the 1990s during a routine physical evaluation. These reports from the Veteran are entitled to probative weight. The Veteran's reports also assert a relationship to service, to include presumed herbicide agent exposure and stressful conditions of serving in Vietnam. In this case, the issue of a relationship to service for the current hypertension is a complex medical question. This is because of the time lapse from service to initial diagnosis, possible alternative causes, and internal disease process of elevated blood pressure. Thus, the relationship question extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See id. at 1377 n.4. Competent medical evidence is required to establish a relationship to service for the post service hypertension. 38 C.F.R. § 3.159(a)(1). Because the Veteran is not competent to report as a medical expert, his statements as to a relationship between hypertension and service are not competent. Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). The competent evidence is limited to the November 2018 NAS Agent Orange Update and multiple VA-contract medical opinions. The November 2018 NAS Agent Orange Update is probative evidence showing that there is an association between herbicide agent exposure and hypertension. The VA-contract medical opinions from October 2020 and February 2021 have been determined to be inadequate for adjudication purposes, but given the favorable disposition no prejudice inures to the Veteran from their consideration in the instant analysis. (See December 2020 and June 2021 Board remands). The VA-contract medical opinions together also acknowledge that a history of herbicide agent exposure is a known risk factor for hypertension among several risk factors. The most recent medical opinion is from September 2021. It notes the possibility of a direct relationship to service but found that a definitive determination was beyond the physician's personal expertise. Of particular importance, the February 2021 VA-contract medical opinion reports that there is no single cause for hypertension but the presence of multiple risk factors with a history of herbicide agent exposure being one. The October 2020 VA-contract physician elevates a family history over multiple risk factors based on the February 1966 medical history report about the Veteran's father dying at age 40 due to heart disease. However, the Veteran challenges this family history interpretation. He states that he is one of numerous sibling and none of them have hypertension or heart disease. See October 2020 Veteran report. In sum, the VA-contract medical opinions acknowledge the Veteran's presumed herbicide agent exposure as a risk factor for his hypertension and do not provide uncontroverted evidence for elevating another hypertension risk factor above it. With this background, the Board finds that the evidence is evenly balanced as to whether there is a relationship between presumed herbicide agent exposure and the Veteran's current hypertension. The Board could remand the claim for another medical opinion, but a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216, 225 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). The Board emphasizes that the grant of service connection in this case is not based on the November 2018 NAS Agent Orange Update. Rather, for the foregoing reasons, the evidence taken as a whole including the medical opinions and history, is at least evenly balanced as to whether the Veteran's hypertension is related to service, including presumed herbicide agent exposure. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for hypertension is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. D. Simpson, 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.