Citation Nr: 21009620 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-40 293 DATE: February 23, 2021 ORDER Service connection for hypertension, as due to herbicide agent exposure, is granted. FINDINGS OF FACT 1. The Veteran served in Vietnam during the presumptive period; thus, exposure to herbicide agents is presumed. 2. The Veteran has a diagnosis of hypertension. 3. Epidemiologic evidence concludes that there is “sufficient” evidence of an association between hypertension and herbicide exposure. 4. The evidence is at least in equipoise as to whether the Veteran’s currently diagnosed hypertension is related to his presumed exposure to herbicide agents during service. CONCLUSION OF LAW The criteria have been met for service connection for hypertension, as due to herbicide agent exposure. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters The Veteran had honorable active duty service with the United States Air Force from May 1960 to May 1980, to include service in Vietnam. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2017 and February 2020, the Board remanded the issue on appeal for further development. The issue has returned to the Board for further appellate consideration. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (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, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may be presumed for certain diseases if a veteran was exposed to an herbicide agent, including Agent Orange, during service, and the disease manifested to a degree of ten percent or more any time after service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Also, 38 U.S.C. § 1154(a) requires that VA give ‘due consideration’ to ‘all pertinent medical and lay evidence’ in evaluating a claim for disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, ‘[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.’ Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Finally, when there is an approximate balance of positive and negative evidence on any determinative issue, VA must resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Service connection for hypertension is granted. The Veteran seeks service connection for hypertension which he believes is due to herbicide exposure. In this case, the record reflects that the Veteran served in the Republic of Vietnam; thus, exposure to herbicide agents has been established. VA regulations do not list hypertension as a presumptive disability associated with herbicide agent exposure. This, however, does not preclude the Veteran from establishing entitlement to service connection on a direct incurrence or other basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The National Academy of Sciences (NAS), in 2006 and 2008 updates, concluded that there was “limited or suggestive evidence of an association” between hypertension and herbicide exposure. See 75 Fed. Reg. 32,540, 32,549 (June 8, 2010); 75 Fed. Reg. 81,332, 81,333 (December 27, 2010). However, in November 2018, the NAS upgraded the relationship between hypertension and herbicide exposure from limited/suggestive to “sufficient,” indicating that “there is enough epidemiologic evidence to conclude that there is a possible association” between hypertension and herbicide exposure. See National Academies of Sciences, Engineering, and Medicine. 2018. Veterans and Agent Orange: Update 11 (2018). NAS serves as an advisor on scientific matters and is comprised of experts in the given field; the Board finds the NAS update highly probative. Pursuant to the February 2020 remand directives, a VA addendum opinion was obtained in May 2020. While the Veteran’s exposure to herbicides has been established, the examiner discussed at length whether the Veteran was exposed to herbicides and to what degree. The examiner appears to conclude that the Veteran had little to no exposure to herbicides in service, and therefore, his hypertension was not caused by his herbicide exposure. As rationale, the examiner simply stated that association is not cause and that no medical literature currently shows a causal nexus for Agent Orange and hypertension. The Board finds the May 2020 opinion to be of limited probative value because the examiner unnecessarily discusses the issue of whether the Veteran was exposed to herbicides when this question has already been resolved in favor of the Veteran, and the examiner appears to base her negative opinion, in part, on her conclusion that the Veteran had little to no exposure to herbicides in service. Furthermore, the examiner’s opinion that there is no causal relationship between herbicide exposure and hypertension to be conclusory, because the examiner did not provide a sufficient rationale. Thus, the May 2020 VA opinion is inadequate and of limited probative value. In sum, the Veteran has a current diagnosis of hypertension and is presumed to have been exposed to herbicide agents in service. Moreover, as determined, the Board finds probative the epidemiologic evidence supporting a positive association between herbicide agent exposure and hypertension. The Board thus concludes that, at the very least, the evidence of a causal connection to service is in equipoise. (Continued on the next page)   Accordingly, resolving any reasonable doubt in the Veteran’s favor, the Board finds that the criteria to establish service connection for hypertension are met. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. MacDonald, 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.