Citation Nr: 21006651 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 18-53 696 DATE: February 4, 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 hypertension is related to his presumed exposure to herbicides during active duty service. CONCLUSION OF LAW The criteria for service connection for hypertension have been met. 38 U.S.C. § 1110, 1113, 1116, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1964 to January 1966. This issue initially came to the Board from a February 2012 decision of the Agency of Original Jurisdiction (AOJ). Subsequent decision documents issued by the AOJ described the pending claim as a request to reopen a previously denied claim for service connection for hypertension. But as the Board explained in its introduction to its June 2019 decision and remand, the Veteran timely initiated his appeal of the February 2012 decision and, accordingly, there is no need for him to submit new and material evidence before his claim can be considered on its merits. In April 2019, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing is of record. Entitlement to service connection for hypertension 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 military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or “nexus” between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Depending on the facts of the individual case, service connection may be proven directly “by affirmatively showing inception or aggravation during service or through the application of statutory presumptions . . .” 38 C.F.R. § 3.303(a). According to his post-service VA medical records, the Veteran has been diagnosed with hypertension. This evidence satisfies the current disability requirement of the claim. Although the records of his medical treatment in service do not indicate hypertension or any specific disease or injury associated with hypertension, the Veteran’s representative has suggested that his hypertension is related to his exposure to herbicides during his deployment to Vietnam. Personnel records indicate that the Veteran served in the Republic of Vietnam during active duty. Because he served in Vietnam at the relevant time, the law presumes that he was exposed to herbicide agents. See 38 U.S.C. § 1116(f). Thus, the success of his claim depends on the third and final element: the existence of a causal link – or “nexus” – between his hypertension and his exposure to herbicides in Vietnam. See Fagan, 573 F.3d at 1287. Under some circumstances, the nexus between herbicide exposure and certain associated diseases will also be presumed. See 38 U.S.C. § 1116(a); 38 C.F.R. § 3.307(a)(6), 3.309(e). The diseases implicating a presumption of service connection based on herbicide exposure are listed in 38 C.F.R. § 3.309(e). Hypertension is not one of the listed diseases. Although the presumption of service-connection does not apply to the Veteran’s disease, he is not precluded from establishing service connection directly. See 38 U.S.C. § 1113(b) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Polovick v. Shinseki, 23 Vet. App. 48, 52-53 (2009) (“Even though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection.”). In June 2019, the Board remanded this claim to the AOJ with instructions to obtain an expert opinion concerning the etiology of the Veteran’s hypertension. In February 2020, a nurse practitioner completed a questionnaire indicating that, in her opinion, it was at least as likely as not that the hypertension was related to service. To explain her conclusion, the examiner described her research into recent medical literature, emphasizing a study published in 2016 by the Journal of Occupational and Environmental Medicine. According to the examiner, this study found that exposure to herbicides is “significantly associated” with the risk of hypertension. This study, the examiner continued, documented “a higher prevalence of hypertension in Veterans of the [Army Chemical] Corps who were exposed to herbicides during the war, compared with those who weren’t.” After receiving the favorable February 2020 opinion, the AOJ decided a new opinion was necessary. In a September 2020 deferred rating decision, a rating specialist wrote that, “The VA examiner provide[d] a positive direct medical opinion; however, it’s not supported by the medical rationale given. It says based on medical literature herbicides cause hypertension. However, the VA doesn't recognize hypertension due to herbicides at this time.” Instead of seeking this clarification from the author of the February 2020 opinion, the AOJ obtained a new opinion from a physician assistant in October 2020. According to the October 2020 opinion, a causal relationship between hypertension and the Veteran’s service was less likely than not. To explain this conclusion, the examiner wrote that, “The claims file is silent for any complaint and or treatment for cardiac/hypertension condition during service. The hypertension was not diagnosed until many years post service, with earlies[t] documentation showing 2008 as date of [diagnosis], which is 40 years after separation. A nexus has not been established.” There are potential problems with the September 2020 deferred rating decision. Specifically, the AOJ’s advice to the second examiner that “VA doesn’t recognize hypertension due to herbicides at this time” is inconsistent with 38 U.S.C. § 1113(b) and Polovick. A more accurate statement of the law would be that, although VA does not presumptively grant service connection for hypertension in all Vietnam veterans, individual examiners are free to offer medical opinion evidence estimating the probability that a specific person’s hypertension was related to herbicide exposure in an individual case. The Veteran’s representative complains that the AOJ did not obtain the clarifying opinion from the author of the favorable February 2020 opinion. However, given the problem with the text of the AOJ’s request, any subsequent unfavorable opinion would likely have weaknesses. The Board could potentially order another remand for a new clarifying opinion. But there is a duty to avoid development which can have no purpose other than to obtain evidence against the Veteran. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Under these circumstances, the appropriate course of action is to weigh both opinions against each other, in light of the other evidence, and keeping in mind the Board’s duty to resolve reasonable doubt in the Veteran’s favor. The unfavorable October 2020 opinion relies almost exclusively on the absence of treatment for hypertension in the Veteran’s service treatment records. To satisfy the duty to obtain an adequate opinion, a VA examiner cannot rely on the absence of in-service medical records, standing alone, to justify an unfavorable conclusion. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The February 2020 opinion may have been somewhat general. But the examiner relied on recent medical literature which is highly relevant to this case and she offered a clear explanation for her conclusion. Under these circumstances, the Board assigns more probative weight to the February 2020 opinion than to the contrary October 2020 opinion. Consistent with this finding, the Board further finds that it is at least as likely as not that the Veteran’s current hypertension is related to his presumed exposure to herbicides in service. By law, the doubt resulting from this equipoise in the evidence is resolved in the Veteran’s favor. See 38 U.S.C. § 5107(b); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only ‘an approximate balance of positive and negative evidence’... , the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”). Accordingly, the Board will grant service connection for hypertension. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.