Citation Nr: A21020276 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 200819-105250 DATE: December 20, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for hypertension, including as due to exposure to herbicide agents is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1963 to September 1967, including service in the Republic of Vietnam, receiving the Bronze Star Medal with "V" device among other decorations. In July 2020, after issuance of a Statement of the Case, the Veteran opted into the modernized review system as detailed in the Veterans Appeals Improvement and Modernization Act of 2017, Pub. L. No. 115-55 (2017) (also known as the "Appeals Modernization Act" (AMA)). 38 C.F.R. § 19.2(d). At that time, he requested direct review of the evidence considered by the Department of Veterans Affairs (VA) Regional Office (RO). 38 C.F.R. § 20.202. The Board denied these claims in December 2020, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In August 2021, the Court granted a Joint Motion for Remand (JMR) in which the parties agreed to vacate the December 2020 decision and remand the matters to the Board. 1. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran contends that he has suffered from back pain since his service, including as due to combat. The evidence demonstrates that the Veteran is a combat Veteran, having received the Bronze Star Medal with "V" device. The record documents that, while under attack in Republic of Vietnam, the Veteran attempted to save fellow soldiers by getting them out of harm's way, including carrying a fellow soldier away and running into a burning building in an attempt to save other fellow soldiers. Service treatment records are silent for any complaints, treatment, or diagnosis of any back condition. In July 2020, the Veteran underwent a VA examination. The examiner opined that the Veteran's back disability is not related to his service because the Veteran was not diagnosed until 2020 and his service records are silent as to any back disability. First, with regard to the Veteran's claim, the previous Board decision and RO decisions did not address the Combat presumption, as addressed by the Court. The Board in this decision agrees, given the fact that the Veteran is a combat veteran and, therefore, entitled to the combat presumption. Under the combat presumption, where the evidence shows that a veteran engaged in combat with the enemy, his or her lay reports will be sufficient to establish the occurrence of an event or injury during combat as long as such reports are consistent with the circumstances, conditions, or hardships of such service. This is true even if there is no official record of the reported incident, unless there is clear and convincing evidence to the contrary. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). This presumption also extends to a combat veteran's reports of experiencing a permanent disability beginning at the time of injury during combat. Reeves v Shinseki, 682 F.3d 988, 998-1000 (Fed. Cir. 2012). However, "[e]ven when the statutory combat presumption applies, a veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty." Id. at 999 n. 9. As such, the evidence must show that the "disability he incurred in service was a chronic condition that persisted in the years following his active duty." Id. at 1000. Additionally, the record demonstrates that the Veteran has been diagnosed with degenerative disc disease since at least 2004, in addition to his lay statements that he suffered from back pain since service. As such, the RO committed an error in incorrectly relying on the VA examination that did not adequately address the Veteran's combat presumption and did not properly evaluate the evidence of record or lay statements. As the Veteran has been found to be a combat Veteran, a new VA examination is necessary for the examiner to adequately consider the Veteran's lay statements, despite a lack of in-service complaints or treatment for a back disability. 2. Entitlement to service connection for hypertension, including as due to exposure to herbicide agents is remanded. The Board finds that the RO committed an error in failing to obtain a VA examination to determine if the Veteran's hypertension is related to herbicide agent exposure. The Veteran cited to the recent NAS finding, in Veterans and Agent Orange: Update 11 (2018), that hypertension has been upgraded to the "sufficient" category from the "limited or suggestive," category, indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and an herbicide agent. Despite this, the RO did not obtain a VA examination to obtain a medical opinion on whether his hypertension is related to his herbicide agent exposure. Remand is necessary to rectify this error. The matters are REMANDED for the following action: 1. Following a review of the claims file, the reviewing examiner is requested to provide an opinion as to the following: (a.) Whether it is at least as likely not (50 percent probability or greater) that the Veteran's back disability is related to the Veteran's military service, including based on the combat presumption that the Veteran carried fellow soldiers out of harm's way and ran into a burning building when under attack. (b.) Whether it is at least as likely not (50 percent probability or greater) that the Veteran's hypertension is related to the Veteran's military service, including as due to exposure to herbicide agents. The examiner must consider and discuss the NAS finding, in Veterans and Agent Orange: Update 11 (2018), that hypertension has been upgraded to the "sufficient" category from the "limited or suggestive," category, indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and an herbicide agent. (Continued on the next page) In making this determination, the examiner may not rely on the fact that hypertension is not on the presumptive list of diseases associated with herbicide exposure. Rather, the examiner should consider and discuss, as relevant, why any statistical or medical studies are found to be persuasive or unpersuasive, whether there are risk factors for the development of the Veteran's hypertension specific to his medical history, and whether it manifested in an unusual manner, among any other factors deemed pertinent. JOHN G. SETTER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hofmeister 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.