Citation Nr: 21007890 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 19-18 634 DATE: February 11, 2021 REMANDED Entitlement to service connection for hypertension, to include as due to herbicide agent exposure and as secondary to diabetes mellitus type II, is remanded. REASONS FOR REMAND The Veteran had qualifying service from January 1963 to January 1983, including in the Kingdom of Thailand. See DD Form 214; Military Personnel Records. In March 2020, the Veteran testified at a Board Videoconference hearing before the undersigned Veterans Law Judge. In an April 2020 Decision, the Board, in pertinent part, reopened and remanded the issue herein. In August 2020, the Veteran unfortunately passed away. See August 2020 Death Certificate. The Appellant is the Veteran’s widow and substitute claimant. 38 U.S.C. § 5121A(a)(1) (2012). Entitlement to service connection for hypertension Presumptive service connection may be warranted for certain chronic diseases listed at 38 C.F.R. § 3.309(a), including hypertension, if manifest to at least a compensable degree within one year from separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Notably, despite the Veteran and Appellant’s contention that the Veteran was diagnosed with hypertension in 1984 (see June 2002 and May 2020 VA examination reports), post-service records simply do not corroborate that contention (see February 2002 Memorandum from PAB of the Department of the Air Force, 335th Medical Operations Squadron, noting that the Veteran’s post-separation medical records begin in 1985); thus presumptive service connection based on chronicity is precluded. Presumptive service connection may also be warranted for certain conditions that become manifest to a degree of 10 percent or more at any time after service when a veteran was exposed to herbicide agents during service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Notably, however, hypertension is not among the enumerated conditions under 3.309(e); thus, presumptive service connection based on herbicide agent exposure is precluded. Id. Nevertheless, the Veteran’s inability to prevail on a presumptive basis does not foreclose his opportunity to prevail on a direct or secondary basis. Combee v. Brown, 34 F.3d 1039, 1043-33 (Fed. Cir. 1994). Direct service connection may be warranted if the evidence shows: (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 present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Although a competent medical opinion is generally required to establish etiology, competent and credible lay evidence of chronicity and continuity of symptomology may also establish etiology. 38 C.F.R. § 3.303(b); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). VA currently concedes in-service herbicide exposure for Air Force service personnel who served at specially enumerated Air Force bases in the Kingdom of Thailand with a military occupational specialty (MOS) with duties placing him or her at or near the air base perimeter. Specifically, VA will concede herbicide exposure if an Air Force Veteran served on one of the enumerated air bases as an Air Force (1) security policeman, (2) security patrol dog handler, (3) member of a security police squadron, or (4) otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports or other credible evidence. See August 2015 C&P Service Bulletin. Secondary service connection may also be warranted for a current disability that is either proximately caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a), (b); Allen v. Brown, 7 Vet. App. 439 (1995). Notably, on June 14, 2019, the Court issued the precedential decision in Ward v. Wilkie, 17-1204, holding that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). In an October 2015 VA Form 21-526EZ, the Veteran generally contended that his hypertension was related to in-service herbicide agent exposure. In a September 2017 Notice of Disagreement, the Veteran generally contended that his hypertension was caused by working around the flight line and aircrafts in service. During the March 2020 Board hearing, the Veteran testified that his hypertension was related to in-service herbicide agent exposure (his office was proximate to the flight line) and/or secondary to his diabetes mellitus type II (notably, however, the Veteran has never been service connected for diabetes, which precludes secondary service connection [see June 2018 Codesheet]). In the April 2020 Decision (dated April 15, 2020), the Board, based on the evidence of record at that time, found that the Veteran was not exposed to Agent Orange or other tactical herbicide during service. Specifically, in the April 2020 Decision, the Board noted that the Veteran did not claim that he served on or near the base perimeter where tactical herbicides were known to have been used. Nevertheless, the April 2020 Board Decision found that further medical development was required regarding etiology and remanded accordingly. On May 4, 2020, VA received a Correspondence written on April 26, 2020, from the Veteran, which described how he ran/jogged outside daily along the perimeter of the base in the Kingdom of Thailand. This presents a new basis to determine whether he was exposed to herbicide agents. The examiner is advised that actual exposure to herbicide agents is unknown. The matter is REMANDED for the following action: 1. Obtain a medical opinion as to whether the Veteran’s hypertension was etiologically related to herbicide agent exposure on a direct (non-presumptive) basis, as due to exposure to the base perimeter in Thailand. 2. Readjudicate the claim. LLOYD CRAMP Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Daus, 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.