Citation Nr: 21012684 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 16-63 467 DATE: March 4, 2021 ORDER Service connection for hypertension as due to exposure to herbicides is granted. Service connection for peripheral neuropathy as due to exposure to herbicides is granted. REMANDED Service connection for tremors, including as due to exposure to herbicides, is remanded. FINDINGS OF FACT 1. The Veteran has a current diagnosis of hypertension that is attributable to his exposure to herbicides while in active service. 2. 1. The Veteran has a current diagnosis of peripheral neuropathy that is attributable to his exposure to herbicides while in active service. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.3.09. 2. The criteria for service connection for peripheral neuropathy are met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.3.09. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to January 1970. The Board has previously remanded these matters. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d). The term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 (the Vietnam Era), specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6). Regulations create a presumption of service connection for certain diseases, including lung cancer, found to be associated with exposure to a herbicide agent such as that used in Agent Orange. See 38 U.S.C. §§ 1113, 1116; 38 C.F.R. §§ 3.307(d), 3.309(e). Absent affirmative evidence to the contrary, such diseases will be service connected even if there is no evidence of the disease during service, provided that herbicide exposure is established. A Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during such service to certain herbicide agents. In the case of such a Veteran, service incurrence for certain presumptive diseases will be presumed if they are manifest to a compensable degree within specified periods, even if there is no record of the disease during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service. Regardless of the applicability of the presumption, a claimant is not precluded from establishing service connection with proof of direct causation. Proof of direct service connection between exposure and disease requires a showing that exposure during service actually caused the condition which developed years later. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Hypertension Peripheral Neuropathy The Veteran had service in the Republic of Vietnam from June 1968 to June 1969, and therefore was presumptively exposed to herbicide agents, including Agent Orange. See 38C.F.R. §3.307. Neither hypertension nor peripheral neuropathy are on the list of presumptive conditions associated with exposure to herbicides. However, as stated above, service connection can be established on a direct basis. In a May 2020 VA examination, the examiner stated that the Veteran’s hypertension and his peripheral neuropathy were at least as likely as not related to his exposure to herbicides while in-service. Thus, while presumptive service connection for hypertension and peripheral neuropathy is not appropriate in this matter, service connection on a direct basis is warranted. The Veteran has a diagnosis of hypertension and peripheral neuropathy which has been linked to his conceded exposure to herbicides while in-service. The Board notes that the May 2020 examiner’s provides contradictory statements regarding the Veteran’s hypertension’s link to his active duty service. But the examiner specifically states that it is at least as likely as not that the Veteran’s hypertension is related to his herbicide exposure. Additionally, the Board notes that seeking to obtain negative evidence against the Veteran is prohibited by VA law. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted. The Board is aware of VA opinions which did not link the Veteran’s hypertension and peripheral neuropathy to his active duty service. However, as discussed in the Board’s February 2020 Remand, these opinions were not adequate for adjudication purposes and the Board affords them no probative weight. As such, service connection for hypertension and peripheral neuropathy is granted. REASONS FOR REMAND Tremors In regard to the Veteran’s claim for service connection for tremors, the Board finds that the May 2020 VA examiner’s opinion is inadequate for adjudication purposes. The Board sincerely regrets additional delay, but an addendum opinion which addresses the Veteran’s service treatment records regarding his tremors is warranted. The matter is REMANDED for the following action: Obtain an addendum opinion from the May 2020 VA examiner regarding the etiology of the Veteran’s tremors. If the May 2020 examiner is not available, obtain an opinion from a qualified examiner regarding the etiology of the Veteran’s tremors. If the examiner requires an in-person examination, one should be scheduled accordingly. The examiner is asked to provide an opinion on the etiology of the Veteran’s tremors were incurred in, or due to, the Veteran’s service, to include his conceded in-service exposure to herbicide agents. The examiner is asked to address the Veteran’s service treatment records, specifically his August 1969 report of medical history where he stated he had epilepsy or fits. The examiner should note that the Veteran has been presumed sound at entrance as the October 1967 Report of Medical Examination does not note tremors. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304. The Veteran’s lay statements regarding onset and continuity of symptomology should be recorded and considered. A rationale for all opinions must be provided. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, 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.