Citation Nr: 21012011 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 08-25 545 DATE: March 3, 2021 ORDER Entitlement to service connection for hypertension as due to herbicide exposure is granted. REMANDED Entitlement to service connection for hypothyroidism, to include as secondary to herbicide exposure and/or secondary to service-connected DM, CAD, or PTSD is remanded. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his hypertension is at least as likely as not related to his herbicide exposure during his active service. CONCLUSION OF LAW The criteria for service connection for hypertension as due to herbicide exposure have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to August 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from September 2011 and February 2013 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in June 2016. A transcript of the hearing is associated with the electronic claims file. The Board issued a prior decision on these claims in May 2017. However, following an appeal to the United States Court for Appeals for Veterans Claims (Court), in January 2018 a Joint Motion for Partial Remand (Joint Motion) was entered, vacating portions of the Board’s May 2017 decision. In light of the Joint Motion, the Board issued a remand on this claim in February 2020. Service Connection Generally, to establish service connection a Veteran 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (worsened in severity beyond its natural progress) by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448–49 (1995).    Service connection may also be established based on herbicide exposure. 38 C.F.R. § 3.307(a)(6). For VA purposes, an “herbicide agent” includes the chemicals 2,4–D; 2,4,5–T and its contaminant TCCD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). For the purposes of determining herbicide exposure, a veteran who served in qualifying locations 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 herbicides, the veteran is entitled to a presumption of service connection for certain disorders. See 38 C.F.R. § 3.309(e). This presumption is specifically limited to those diseases listed; hypertension is not included. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay 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). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 1. Entitlement to service connection for hypertension, to include as secondary to herbicide exposure and/or secondary to service-connected DM, CAD, or PTSD. It has previously been found that the Veteran has presumed herbicide exposure. Additionally, the Veteran has a current diagnosis of hypertension. The Veteran has consistently argued that his hypertension is secondary to his presumed in-service herbicide exposure. Hypertension is not included on the list of diseases associated with herbicide agents that would trigger presumptive service connection. 38 C.F.R. § 3.309(e). However, in Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). In a January 2021 representative’s brief, it is noted that the National Academy of Sciences (NAS) concluded in a 2018 update that there was “sufficient evidence of an association between the chemicals of interest (herbicides) and hypertension.” The Veteran’s representative has argued that in light of the upgraded relationship from the NAS that the Board should consider Wise v. Shinseki, 26 Vet. App. 517, 530 (2014), which held that in keeping with the benefit of the doubt rule, Congress has not mandated that a medical principle have reached the level of scientific consensus to support a claim for VA benefits, in rendering an opinion. The Board notes that the record contains evidence both in support of and against the claim of entitlement to service connection for hypertension as secondary to herbicide exposure. In a January 2020 letter in support of the Veteran’s claim, his wife wrote “Taking into account my husband’s history; with all of this information considered, new studies taking place everyday involving actual veterans and new findings; we (my husband and I) think: *With the new NASEM findings of ‘sufficient’ evidence, his hypertension is more likely than not due to his Agent Orange exposure. *At a minimum, it is just as likely as not, his compromised endocrine and cardiovascular system contributed to his hypothyroidism and hypertension. Just as likely, his PTSD contributed additionally to these two already-stressed systems. Due to the complexity of these issues and the arguments presented; and the varied opinions in the medical field, it appears we could trade pros and cons indefinitely. My husband’s submitted findings are reasonable and within a scope of probability. For this reason, a proximate balance exists between both sides and the claim should be decided in my husband’s favor due to CFR § 3.102, which sides with the veteran in cases of reasonable doubt.” The Board agrees. Specifically, VA has obtained negative opinions regarding the connection between the Veteran’s hypertension and his presumed herbicide exposure. However, the Veteran has also provided an August 2016 opinion from his treating physician opining that his hypertension is directly related to his exposure to Agent Orange while serving in the military writing “After complete review of the Veteran’s ongoing medical treatment records and in person examination, in my opinion, [the Veteran’s] hypertension and hypothyroidism is at least as likely as related to (equal to or greater than 50%) related to [sic] Agent Orange Exposure while in the military service. He is presently being treated with supplementation successfully.” The Board finds that in light of the NAS upgrade regarding hypertension and its relationship to herbicides and the August 2016 opinion provided by the Veteran’s treating physician regarding the same, that the evidence is in at least equipoise. Accordingly, resolving reasonable doubt in favor of the Veteran, entitlement to service connection for hypertension as secondary to herbicide exposure is granted. REASONS FOR REMAND 1. Entitlement to service connection for hypothyroidism, to include as secondary to herbicide exposure and/or secondary to service-connected DM, CAD, or PTSD is remanded. In the January 2021 representative’s brief, it is noted that the National Defense Authorization Act for Fiscal Year 2021 (NDAA) added three more conditions to the Agent Orange presumptive-conditions list, including hypothyroidism. The Veteran has presumed herbicide exposure. Accordingly, remand is warranted for the RO to adjudicate this claim in light of the new law. The matters are REMANDED for the following action: 1. Readjudicate the claim for service connection for hypothyroidism, to include as secondary to herbicide exposure, in light of the 2021 NDAA adding hypothyroidism to the list of Agent Orange presumptive-conditions list. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, 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.