Citation Nr: 21007770 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 13-32 257 DATE: February 10, 2021 REMANDED The issue of entitlement to service connection for hypertension is remanded for further development. REASONS FOR REMAND The Veteran served on active duty from March 1967 to March 1969 and was awarded the National Defense Service Medal and Armed Forces Expeditionary Medal (Korea). He also served in the Army National Guard with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) from January 1983 to January 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In a September 2017, October 2019, and October 2020, the Board remanded the above issue for additional development. Service Connection The Veteran contends that his current disability of hypertension is related to the high blood pressure readings he had during service. In the alternative, the Veteran maintains that his hypertension condition is due to, or otherwise related to, his in-service exposure to herbicide agents. Service connection may be established based on herbicide agent exposure. 38 C.F.R. § 3.307(a)(6). A Veteran who served in qualifying locations, including in or near the Korean demilitarized zone (DMZ) between April 1, 1968, and August 31, 1971, is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii). If the Veteran is presumed to have been exposed to herbicide agents, the Veteran is entitled to a presumption of service connection for certain disorders. See 38 C.F.R. § 3.309(e). In a June 2020 development letter, the RO found that the Veteran was assigned to Svc Btry, 1st Bn, 17th Arty APO 96224, which was not a unit identified as serving in the Korean DMZ per VA M21-1 IV.ii.1.H.3.b. However, in its September 2017 decision, the Board found the Veteran’s DD 214 and other service personnel records for his Vietnam War period of service reflect that he served in support of military operations in the Korean DMZ Conflict from March 1967 to March 1969 as a Heavy Vehicle Driver, and as such, found that the Veteran’s travel to the DMZ was consistent with the circumstances of his service. Under the Appeals Modernization Act, any finding favorable to the claimant made by either a VA adjudicator, as described in §3.103(f)(4), or by the Board of Veterans’ Appeals, as described in §20.801(a), is binding on all subsequent agency of original jurisdiction and Board of Veterans’ Appeals adjudicators, unless rebutted by evidence that identifies a clear and unmistakable error in the favorable finding. 38 C.F.R. § 3.104(c). Although this regulation is not applicable for appeals within the legacy system, as here, the Board also acknowledges CAVC’s recent holding in Smith v. Wilkie that “the principles of fair process require the Board to provide claimants notice and an opportunity to respond when it purports to reverse prior assertions that evidence is credible or otherwise satisfactory to establish a fact necessary to the claim.” Smith v. Wilkie, 32 Vet. App. 332, 334 (2020). Thus, in keeping with the principle articulated in Smith, and in viewing the evidence in the light most favorable to the Veteran, the Board adopts its September 2017 findings that the Veteran’s duties in service placed him in the Korean DMZ and as such, he may be presumed to have been exposed to herbicide agents. In 2006, the National Academy of Science (NAS) elevated hypertension from the “Inadequate or Insufficient Evidence” category to the “Limited or Suggestive Evidence” category with respect to its connection to herbicide exposure. Update 2012 provides the history of NAS changing the categorization of hypertension beginning in its 2006 Update and subsequent Updates. See 79 Fed. Reg. 20308 (Apr. 11, 2014). The NAS updates are published in the Federal Register by VA, and thus VA is on notice as to the information contained therein. Update 2012 notes that NAS has defined this category of limited or suggestive evidence to mean "the evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence.” Id. at 20309. The Board finds that the suggestive evidence of an association between hypertension and herbicide exposure is sufficient to establish an “indication” that the current disability “may be related” to herbicide exposure during service, as contemplated by 38 U.S.C. § 5103A(d)(2)(B). The Court has described the threshold of the statute as being low. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The issue is thus remanded for a VA opinion to determine the nature and etiology of the Veteran’s hypertension. The matter is REMANDED for the following actions: 1. Obtain an addendum medical opinion by an appropriate clinician to determine the nature and likely etiology of his hypertension. The Veteran’s record must be reviewed by the clinician. The clinician should respond to the following: (a.) Is it at least as likely as not (50 percent probability or more) that hypertension began in service or is otherwise related to service? The clinician must specifically consider and discuss the Veteran’s presumed exposure to certain herbicide agents, such as Agent Orange, as the National Academy of Sciences Institute of Medicine has concluded that there is “limited or suggestive evidence of an association” between herbicide exposure and hypertension. (b.) Please note that a medical opinion which concludes that a disease is not related to herbicide exposure solely because there is no presumption of service connection is inadequate. 2. After completing the requested action, and any additional action deemed warranted, the AOJ should readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Bilstein, 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.