Citation Nr: A21019335 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 210329-147624 DATE: December 6, 2021 ORDER Entitlement to service connection for hypertension, to include as due to herbicide agent exposure, is granted. FINDINGS OF FACT 1. The Veteran has current diagnosis of hypertension. 2. The Veteran served in the Republic of Vietnam from October 1969 to October 1970 and is therefore presumed to have been exposed to herbicide agents therein. 3. Epidemiologic evidence concludes that there is a positive association between hypertension and exposure to herbicide agents, including Agent Orange. 4. Resolving reasonable doubt in the Veteran's favor, his hypertension is at least as likely as not related to exposure to herbicide agents in service. CONCLUSION OF LAW The criteria for service connection for hypertension, to include as due to herbicide agent exposure, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1969 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the February 2021 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a heart condition/ischemia and denied service connection for bilateral leg swelling/ peripheral edema. The rating decision on appeal was issued in February 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. The Veteran has several appeals pending before the Board, including claims for service connection for bilateral leg swelling/peripheral edema, kidney cancer, posttraumatic stress disorder, right and left knee disability, sleep apnea, and hearing loss. While all the claims are in appellate status, based on the February 2021 rating decision and March 2021 VA Form 10182, Notice of Disagreement, the only claim before the Board is the claim for a heart condition. The Board notes the claim for bilateral leg swelling/peripheral edema was listed in the March 2021 VA Form 10182 but had already been appealed in the November 2020 VA Form 10182; thus, that claim is part of a different appeal not in front of the Board at this time. In October 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a May 2020 decision. In February 2021, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior October 2020 decision. In the March 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. In the February 2021 rating decision, the RO found evidence of a qualifying event, injury, or disease had its onset during the Veteran's service, as his DD Form 214 showed service in Vietnam between October 1969 and October 1970 and awarded the Combat Infantryman Badge, Purple Heart, Air Medal, Bronze Star, and Parachute badge. The Board is bound by these favorable findings. 38 C.F.R. § 3.104(c). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Pertinent Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or 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). Establishing entitlement to direct service connection requires: (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 disability and the disease or injury incurred or aggravated during service - which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Hypertension The Veteran contends that his heart condition is related to his service in Vietnam. See December 2019 Application for Disability Compensation and Related Compensation Benefits. As an initial matter, the Veteran is not currently diagnosed with a heart disability that is classified as ischemic heart disease under 38 C.F.R. § 3.309(e), for diseases associated with exposure to herbicide agents, which includes acute, subacute, and old myocardial infarction, atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery, and stable, unstable and Prinzmetal's angina. Specifically, VA primary care and cardiology consultations and treatment records, including stress tests, have not revealed the presence of any of the aforementioned disabilities. See October 2014 VA Stress Test, March 2015 VA Treatment Record, July 2019 VA Stress Test. However, the Veteran is currently diagnosed with hypertension. See October 2010, April 2011, and January 2016, July 2019 VA Treatment Records. Therefore, the Board, has re-characterized the claim to entitlement to service connection for hypertension. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Moreover, he satisfies the first element of service connection. The Board recognizes that the Veteran was also diagnosed with a heart murmur, left ventricular hypertrophy and aortic stenosis. See July 2019 Emergency Department Note and VA Treatment Record. As noted above, the disabilities are not included in the enumerated list of disabilities related to herbicide exposure. 38 C.F.R. § 3.309(e). Thus, the avenue for service connection is on a direct theory of entitlement. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board finds such would fail as there is no evidence of record, lay or otherwise, of a heart disability, treatment, or complaints in service or within one year of service. The RO established in the February 2021 rating decision that the Veteran is presumed to have been exposed to herbicide agents based on his service in Vietnam during the applicable time period. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Therefore, the Veteran meets the element for in-service incurrence. VA laws and regulations provide that if a veteran was exposed to herbicide agents during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). The Secretary of VA has determined that there is no positive association between exposure to herbicide agents and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32, 395-32, 407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21, 260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). Hypertension is not one of the diseases listed under 38 C.F.R. § 3.309(e). However, the National Academies of Sciences, Engineering, and Medicine, on November 15, 2018, 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 herbicide agents, including Agent Orange. See National Academy of Science (NAS) November 2018 update report titled, Veterans and Agent Orange Update 11 (2018). The Board finds the study provided by the NAS, which is made up of experts in the given field of science, is probative evidence that is relevant here. No VA compensation examination has been provided. Therefore, based on the relatively recent scientific evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran's hypertension is etiologically related to his exposure to herbicide agents while serving in Vietnam. As such, resolving reasonable doubt in the Veteran's favor, the Board finds that all elements of service connection for hypertension are met, and the appeal is granted. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moldawer, 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.