Citation Nr: 21075781 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 13-26 457 DATE: December 21, 2021 ORDER The claim of entitlement to service connection for hypertension, to include as due to herbicide exposure, is granted. FINDING OF FACT The Veteran's hypertension is related to his in-service exposure to herbicides. 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1968 to April 1971, to include service in Vietnam. He received the Vietnam Campaign Medal, among other commendations. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In November 2016, the Veteran testified before a Veterans Law Judge who is no longer employed by the Board; a hearing transcript is of record. In a January 2021 correspondence, the Veteran was given the opportunity to request another optional Board hearing. The Veteran did not respond within the required 30 days and has not submitted a subsequent request for another hearing. As such, the Board will proceed with the adjudication of this matter without an additional hearing. The Board previously remanded this matter in November 2017, April 2019, and March 2021, to the agency of original jurisdiction (AOJ) for additional development. The Board concludes that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). The claim of entitlement to service connection for hypertension, to include as due to herbicide exposure. The Veteran contends that he is entitled to service connection for hypertension, to include as due to herbicide exposure. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Veterans who were exposed to herbicide agents (such as Agent Orange) during active service and who developed one or more specifically named diseases to a degree of 10 percent or more at any time after service are entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(e). Conditions that are not specifically listed (such as hypertension) are not currently eligible for presumptive service connection. Notwithstanding the foregoing, regulations also provide that 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. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 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 exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). When the preponderance of the evidence weighs against the claims of the Veteran, the claim will be denied on its merits, and when the preponderance of the evidence weighs for the claims of the Veteran, the claim will be granted on its merits. In those cases, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the question for the Board is whether the Veteran has a current diagnosis of hypertension that began during active service or is at least as likely as not caused by an in-service injury or disease, to include as due to exposure to herbicides. First, the Veteran has a current diagnosis of hypertension. See e.g., April 2021 VA examination. As such, the first element of service connection is met. Next, the Veteran's Form DD 214 confirms that the Veteran had service in the Republic of Vietnam. Therefore, it is presumed that the Veteran was exposed to herbicide agents during his active service. As outlined below, although the medical evidence of record does not show the Veteran developed hypertension during or within a year of his active service, his exposure to herbicides constitutes a qualifying in-service event as the medical evidence provides a link between that exposure and his currently diagnosed hypertension condition. Finally, the Board finds that there is adequate medical opinion evidence to link the Veteran's current hypertension to his in-service herbicide exposure. Pursuant to the Board's July 2021 remand, the VA physician who completed the April 2021 physical examination was directed to provide an addendum opinion and to specifically address a November 2018 National Academy of Sciences (NAS) report that upgraded the likelihood of an association between hypertension and exposure to herbicides, to include Agent Orange, from "limited or suggestive" evidence of an association to "sufficient" evidence of an association. In August 2021, this physician considered the NAS report and concluded that the medical research had found "enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. This clinician ultimately opined that the Veteran's hypertension "is at least as likely as not attributable to his conceded in-service exposure to herbicides." The Board finds this August 2021 addendum opinion probative as the physician, who had previously examined the Veteran and considered his medical history, addressed the updated NAS report in revising her earlier conclusion. The Board notes that the October 2021 supplemental statement of the case indicates that VA is not required to grant presumptive service connection for disabilities not on VA's presumptive Agent Orange list. The Board agrees with this statement. However, in the present situation, the claim is not being granted on a presumptive basis. Rather, a medical professional reviewed the evidence in this specific case and offered an opinion unique to the Veteran's personal history. The Board finds this opinion to be both competent and credible. CONTINUED ON NEXT PAGE Having fully considered the evidence of record, the Board concludes that the preponderance of the evidence shows the Veteran's hypertension to be caused by the Veteran's active service and herbicide exposure. As such, service connection for hypertension is granted. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, 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.