Citation Nr: 21008689 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-32 656 DATE: February 17, 2021 ORDER Entitlement to service connection for hypertension, to include as due to in-service herbicide agent exposure, is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the Veteran’s hypertension is at least as likely as not related to herbicide agent exposure during service in Vietnam. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(6). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1965 to August 1967. This appeal is before the Board of Veterans’ Appeals (Board) from a July 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). Also, the Veteran’s claim was previously remanded by the Board in August 2018 and July 2020 for further development. The Board finds substantial compliance with the July 2020 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran alleges his hypertension is related to exposure to herbicide agents during service in the Republic of Vietnam. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For purposes of service connection for a disability resulting from exposure to herbicide agents, including a presumption of service connection, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1113, 1116; 38 C.F.R. § 3.307(a)(6)(iii). Certain diseases shall be service connected presumptively for veterans with service in the Republic of Vietnam, even if there is no record of such disease during service. 38 C.F.R. § 3.307(a). The diseases that will be presumed to be related to service as a result of exposure to herbicides are enumerated in 38 C.F.R. § 3.309(e), but a claimant is not precluded from establishing service connection for other disabilities with proof of actual direct causation, i.e., a link between the current disability and in-service exposure to herbicides. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). As the evidence of record has been previously stated in the prior August 2018 and July 2020 Board remands, the following will not be a full recitation of the facts. Turning to the evidence of record, the Veteran’s service personnel records (SPRs) indicate he served in the Republic of Vietnam. In September 2019, the Veteran underwent a VA hypertension examination report which included a review of the claims file, a recitation of complaints and medical history, and physical examination results. The examiner opined it was less likely than not the Veteran’s hypertension was related to active duty service as he was not treated for hypertension in-service and he was not diagnosed until 2015. The examiner also determined that since hypertension is not listed as a condition presumed to be caused by Agent Orange exposure, it is less likely than not his hypertension was caused by such exposure. In July 2020 the Board remanded the Veteran’s case for a medical opinion to determine whether his hypertension was caused by or aggravated by his service-connected coronary artery disease. Subsequently in July 2020 an addendum opinion was entered into the claims file. The opinion determined his hypertension was less likely than not the result of his coronary artery disease as “coronary artery disease cannot cause hypertension.” However, at the bottom of the examination report as to opinions regarding conflicting evidence, the examiner opined the following, “Yes, the veteran’s hypertension is at least as likely as not (50 percent or greater probability) causally or etiologically related to the veterans active duty service, to include his presumed exposure to herbicide agents.” The examiner cited to the changes in a National Academies of Sciences, Engineering and Medicine (NAS) study that found sufficient evidence of an association between hypertension and exposure to Agent Orange and other herbicides. After review of the claims file in conjunction with the applicable laws and regulations, the Board finds the evidence of record to at least be in equipoise as to whether the Veteran’s hypertension is related to in-service herbicide agent exposure. The Board finds that based on his SPRs and DD-214 the Veteran served in the Republic of Vietnam. Based on this, the Veteran is presumed to have been exposed to herbicide agents during service. See 38 C.F.R. § 3.307(a)(6)(iii). Moreover, the Veteran has a current diagnosis of hypertension. As such, the Veteran fulfills the first two elements required for service connection. See Shedden, 381 F.3d at 1167 (Fed. Cir. 2004). As to a medical nexus, the Board finds there is a balance of positive and negative evidence. While a September 2019 VA examination report determined it was less likely than not his hypertension was the result in-service Agent Orange exposure, a July 2020 VA addendum opinion, after consulting with the updated NAS study, determined it was at least as likely as not his hypertension is the result of his in-service Agent Orange exposure. While hypertension is not listed as a presumptive disease related to Agent Orange exposure under VA regulations, that fact does not invalidate the path of direct service connection. Combee, Supra. The July 2020 VA addendum opinion provides a persuasive rationale for direct service connection in the Veteran’s case based on scientific evidence, specifically, the cited NAS study. As such, considering the balance of positive and negative evidence, the Board finds the evidence of record is in relative equipoise as to whether his hypertension is the result of active duty service. When cases such as this contain an approximate balance of positive and negative evidence regarding the matter at issue, the Board must resolve reasonable doubt in the Veteran's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Accordingly, considering the length of time since the Veteran filed his claim and the date of this decision, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s hypertension is related to in-service herbicide exposure. As such, the benefit of the doubt rule applies. Id. Accordingly, the Veteran's claim for service connection for hypertension to include as due to in-service herbicide agent exposure, is granted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.