Citation Nr: 21009992 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-11 073 DATE: February 23, 2021 ORDER Entitlement to service connection for hypertension, as secondary to service-connected type 2 diabetes mellitus (DM2) with mild nonproliferative diabetic retinopathy of the left eye, is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the probative evidence of record demonstrates hypertension is proximately due to his service-connected DM2 with mild nonproliferative diabetic retinopathy of the left eye. CONCLUSION OF LAW Entitlement to service connection for hypertension as secondary to service-connected DM2 with mild nonproliferative diabetic retinopathy of the left eye have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1970 to August 1974. A January 2019 Board of Veterans’ Appeals (Board) decision denied service connection for hypertension. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). By a September 2020 Order, the Court vacated and remanded the issue of service connection for hypertension to the Board pursuant to the terms of a Joint Motion for Remand. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). If a Veteran was exposed to an “herbicide agent,” such as Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam from January 9, 1962, to May 7, 1975, then, absent affirmative evidence to the contrary, certain diseases will be presumptively service-connected even if there is no record of the disease in service. 38 U.S.C. §§ 1110, 1116, 1131; 38 C.F.R. §§ 3.307(a)(6), (d), 3.309(e). The Veteran’s DD Form 214 reflects he served in the Republic of Vietnam in September 1972 and October 1972. Therefore, the evidence of record demonstrates that the Veteran served in the Republic of Vietnam during the Vietnam War era and is presumed to have been exposed to an herbicide agent during that service; however, hypertension is not included in the list of diseases which are deemed associated with herbicide exposure under current VA law. 38 U.S.C. § 1116(f); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). Thus, the presumptive regulations for diseases associated with herbicide exposure do not apply in this case. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). The claim will therefore be analyzed on the basis of direct and secondary service connection. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service connected disease or injury; or, for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease. 38 C.F.R. § 3.310(a)-(b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). 1. Hypertension The Veteran asserts that his hypertension is secondary to his service-connected DM2. The probative evidence of record reflects that the Veteran has a current diagnosis of hypertension and is service-connected for DM2. The probative evidence is in equipoise as to whether hypertension is proximately due to his service-connected DM2. 38 U.S.C. §§ 1110, 1131; Allen, 7 Vet. App. 439; 38 C.F.R. §§ 3.303, 3.310(a). The May 2014 VA examination of hypertension demonstrates the Veteran has a current diagnosis of hypertension, and in the May 2014 VA examinations of both hypertension and diabetes mellitus, the VA examiner concluded that hypertension was at least as likely as not due to DM2 and that DM2 was related to hypertension. In her rationale, the VA examiner found that, although the Veteran’s diagnosis of hypertension occurred one year before his diagnosis of DM2, many people with symptomatic DM2 develop diabetic complications years before glucose serum levels exceed the thresholds leading to a diagnosis of DM2, citing to medical treatise information. She also noted that, although diabetic nephropathy was not present, a diagnosis of diabetic nephropathy is not required in order to attribute hypertension to DM2 and cited to several medical sources in noting that hypertension was a comorbidity of DM2 and that it coexisted with other cardiometabolic risk factors with DM2. A December 2016 VA opinion was provided in which a different VA examiner found it was less likely than not that hypertension was proximately due to or the result of DM2 and was not aggravated by DM2. In her rationale, the VA examiner found that hypertension was diagnosed before DM2 and therefore there was no relationship between the two. She also found that there was no renal dysfunction or nephropathy, which was a contributor to diabetes-related hypertension. The VA examiner concluded that hypertension was primary hypertension and not related to DM2. In regard to the issue of aggravation, she found that VA treatment records do not document worsening or poorly controlled hypertension and the treatment records supported the usual course of chronic hypertension. Significantly, the Board observes the December 2016 VA examiner did not address the May 2014 VA examiner’s rationale, specifically that complications of DM2 can occur before DM2 is diagnosed and that diabetic nephropathy is not required to attribute hypertension to DM2, which were supported by several medical sources. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current hypertension is proximately due to his service-connected DM2. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for hypertension is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saira Spicknall, 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.