Citation Nr: 21012764 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 10-21 318 DATE: March 5, 2021 ORDER Service connection for hypertension is granted. FINDING OF FACT Resolving reasonable doubt in his favor, the Veteran’s hypertension is due to in-service herbicide agent exposure. CONCLUSION OF LAW The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from March 1970 to October 1971 in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This claim was previously before the Board in July 2017 and was denied. The Veteran appealed the decision to the United States Court of Appeals for Veterans’ Claims (Court). In April 2018, the Court granted a March 2018 Joint Motion for Partial Remand (JMPR) vacating the Board’s decision and remanded the claim for further development. Thereafter, the matter was remanded by the Board in September 2018 and again in May 2020. The matter is now before the undersigned. In December 2011, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) no longer at the Board; a transcript of that hearing is of record. In April 2016, the Veteran was offered the opportunity to testify at a hearing before another VLJ. See 38 U.S.C. § 7107(c); 38 C.F.R. § 20.604. Because the Veteran did not request a new Board hearing, the Board proceeded with adjudication. The Veteran contends that his hypertension is related to active service. Granting the benefit of the doubt to the Veteran, the Board concludes that hypertension is at least as likely as not due to the Veteran’s presumed herbicide agent exposure in Vietnam and that service connection is therefore warranted. Establishing service connection generally requires medical or, in certain circumstances, lay 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 present disability). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). The Veteran had service in the Republic of Vietnam; herbicide exposure is therefore presumed. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307 (a)(6)(iii). Further, the RO has conceded herbicide agent exposure. The Veteran has been diagnosed with hypertension. Hypertension is not included on the list of diseases presumed to have been incurred in service in Vietnam. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). However, the Veteran may still be entitled to service connection on a direct basis if the evidence establishes that hypertension is related to herbicide agent exposure. In this regard, the Board notes that in its 2018 Update the National Academy of Sciences (NAS) indicated that there is “sufficient” evidence of an association between hypertension and herbicide agent exposure. The NAS therefore upgraded hypertension from its prior classification in the “limited or suggestive” evidence category to the category of “sufficient” evidence of an association. That is, “[e]pidemiologic evidence is sufficient to conclude that there is a positive association.” See NATIONAL ACADEMY OF SCIENCE, VETERANS AND AGENT ORANGE: UPDATE 11 (2018), http://nationalacademies.org/hmd/ reports/2018/veterans-and-agent-orange-update-2018.aspx. Per the May 2020 remand, a VA opinion was obtained in September 2020 regarding the etiology of the Veteran’s hypertension. The examiner found that it was less likely than not that the Veteran’s hypertension was related to his service. In support of his opinion, the examiner stated that the prospect of exposure to TCDD from Agent Orange in ground troops in Vietnam seems unlikely in light of the environmental dissipation of TCDD, little bioavailability, and the properties of the herbicides and circumstances of application that occurred. The Board finds that while the opinion discusses detailed medical literature, it does not adequately address the Veteran’s specific case. See Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009) (holding that a medical opinion finding no nexus based solely on medical literature is inadequate because it provides no discussion into the claimant’s specific risk factors and circumstances of service). The Board therefore finds that the competent evidence is at least in equipoise regarding whether the Veteran’s hypertension is likely due to exposure to herbicide agents in Vietnam. As noted above, the NAS has found that there is “sufficient” epidemiologic evidence to conclude that a positive association exists between herbicide agent exposure and hypertension. As such, the Board finds that the evidence regarding causation is at least in equipoise. (Continued on the next page)   Therefore, resolving all doubt in favor of the Veteran, the Board finds that service connection for hypertension is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Kerner, 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.