Citation Nr: 21006166 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 93-16 188 DATE: February 3, 2021 ORDER Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II (diabetes) and/or secondary to herbicide agent exposure is granted. FINDING OF FACT The Veteran’s hypertension is related to his presumed exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5103; 38 C.F.R. §§ 3.102, 3.303, 3.307. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from April 1964 to April 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2002 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The September 2002 rating decision denied the Veteran’s initial claim for service connection for hypertension. The Veteran timely submitted a notice of disagreement with that decision and a Statement of the Case (SOC) was issued in July 2003. The Veteran submitted a substantive appeal (VA Form 9) in October 2003, and although submission of the Form 9 was not timely, the Board previously accepted the October 2003 Form 9 as appealing the issue for service connection for hypertension and found that the September 2002 rating decision was the rating decision currently on appeal for that issue. See May 2017 Board remand. The Board remanded the claim on appeal in May 2012, May 2017, and August 2020 for additional development. The Board’s remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also notes that in a November 2020 correspondence, the Veteran was informed that the private attorney he had appointed in May 2019 was not an accredited representative and therefore could not represent him. However, the Board finds that the exception provided in 38 C.F.R. § 14.630 is applicable in this case. Pursuant to this provision, an unaccredited individual may represent a veteran one time only so long as a VA Form 21-22a along with a statement signed by the representative and veteran that no compensation shall be paid to the representative is submitted. A review of the VA Form 21-22a submitted in May 2019 shows that while the box for “attorney” was checked instead of the box for an “individual providing representation under section 14.630,” both the Veteran and the attorney signed the Section 14.630 statement specifically stating that no compensation will be charged by or paid to the attorney. Additionally, no fee agreement ever was submitted, and the attorney never has requested the payment of fees from VA, further evidencing the intention to provide representation under Section 14.630. In light of the foregoing, the Board finds that the attorney named on the title page is the Veteran’s valid representative for this appeal but will not be permitted to represent him for any other claim in the future absent an applicable exception. The Board also acknowledges that the Veteran’s representative was not sent a copy of the Board’s docketing letter and was not provided notice that the appeal was back before the Board. However, in light of the favorable decision below representing a full grant of the benefits sought on appeal, the Board finds no prejudice to the Veteran. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes and/or secondary to herbicide agent exposure. The Veteran contends that his hypertension is related to his service-connected diabetes or his presumed exposure to herbicide agents. For the reasons that follow, the Board finds that service connection is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may be established for chronic diseases, to include hypertension, manifesting to a certain degree within a year after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). In addition, service connection may be established on a presumptive basis for certain diseases resulting from exposure to herbicide agents, such as Agent Orange, if a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, absent affirmative evidence to establish that the Veteran was not exposed to such herbicide agent during that service. See 38 C.F.R. §§ 3.307(a)(6)(iii). If a Veteran is presumably exposed to an herbicide agent, then there is a presumption of service connection for certain enumerated diseases. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a) and 3.309(e). Hypertension is not included in such enumerated diseases. In addition to service connection on a direct basis, service connection may also 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; see also Allen v. Brown, 7 Vet. App. 439 (1995). Turning to the evidence of record, there is no dispute that the Veteran has a current diagnosis of hypertension. Accordingly, the first element of service connection has been established. The Veteran contends that his hypertension is related to herbicide agent exposure. The Veteran’s exposure to herbicide agents has been conceded. See April 2002 rating decision. Thus, the second element of service connection also has been established. Turning to the third element of service connection, a casual nexus between the Veteran’s hypertension and herbicide agent exposure, the Board finds this element also has been established. A VA opinion initially was obtained in August 2014. However, in its August 2020 remand, the Board found the opinion was inadequate. Pursuant to the August 2020 remand, a new opinion was obtained in October 2020. The examiner opined that the Veteran’s hypertension was at least as likely as not related to his exposure to herbicide agents. A cogent rationale was provided for the opinion. There is no competent and probative evidence to the contrary. In light of the foregoing, the Board finds that service connection for hypertension is warranted. Accordingly, the claim is granted. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, 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.