Citation Nr: 21013479 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-10 431A DATE: March 9, 2021 ORDER Entitlement to service connection for hypertension is granted. Entitlement to service connection for residuals of a left-sided cerebrovascular accident (CVA) as secondary to service-connected hypertension, is granted. FINDINGS OF FACT 1. The Veteran was exposed to herbicide agents during his active service in the Republic of Vietnam from May 1967 to August 1969. 2. The Veteran's hypertension is at least as likely as not related to his exposure to herbicide agents during active service. 3. The Veteran's current residuals of a left-sided CVA are attributable to his service-connected hypertension. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307. 2. The Veteran's residuals of a left-sided CVA are proximately due to, or the result of, his service-connected hypertension. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from December 1966 to August 1969. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in March 2012 and May 2012. In a July 2018 decision, the Board remanded the case to the agency of original jurisdiction (AOJ). The case has since been returned to the Board for appellate review. The Board finds that the AOJ substantially complied with prior remand directives, to the extent possible, and no further action in this regard is warranted. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (concluding that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with the Board's remand instructions). The record shows that the March 2012 rating decision separately denied the Veteran's service connection claims for acute hypertension; cerebral aneurysm; paralysis, right side; speech, cognitive loss; and ambulatory imbalance. In accordance with 38 C.F.R. § 3.156(b), the AOJ readjudicated these issues in a May 2012 rating decision after additional VA treatment records were received in April 2012. In the May 2012 rating decision, the AOJ recharacterized the issues as entitlement to service connection for hypertension and entitlement to service connection for residuals of a left-sided CVA secondary to hypertensive bleed claimed as cerebral aneurysm with residuals of speech and cognitive loss and paralysis of the right side including ambulatory imbalance. The Veteran then filed a timely notice of disagreement in November 2012. In the July 2018 remand, the Board recharacterized the second issue as entitlement to service connection for residuals of a left-sided CVA, to include speech and cognitive loss, paralysis of the right side, and ambulatory imbalance. 1. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents and/or as secondary to service-connected ischemic heart Agent Orange, also claimed as coronary artery disease. 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; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including hypertension, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this decision, all blood pressure measurements are noted in units of pressure in millimeters of mercury (mmHg). For VA compensation purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 or greater; and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 or greater with diastolic blood pressure less than 90. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). In addition, hypertension must be confirmed by readings taken two or more times on at least three different days. See id. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(a)(6) provides that 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. 38 C.F.R. § 3.307(a)(6)(i). Section 3.307(a)(6) also provides that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). The diseases presumed to be associated with herbicide exposure include: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For the purposes of § 3.307, 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 Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). Service connection may also be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 48 (1995) (en banc). The Veteran contends that he has hypertension that is related to his exposure to herbicide agents during his active service. The record has also raised the theory that the Veteran’s hypertension is secondary to his ischemic heart disease disability. The record reflects that the Veteran had service in the Republic of Vietnam from May 1967 to August 1969. See March 2010 Response from National Personnel Records Research Center. As such, his in-service exposure to herbicide agents is presumed. 38 C.F.R. § 3.307(a)(6)(iii). The Veteran also has a current diagnosis for hypertension. See March 2019 VA examination. The Veteran’s service treatment records (STRs) are silent for any complaint, diagnosis, or treatment for hypertension. The Veteran reported that his hypertension was first noted when he was diagnosed with a CVA in 1995. See March 2019 VA examination. Regarding the question of whether the Veteran's hypertension is related to his active service, a VA examiner provided a negative nexus opinion in March 2019. The examiner noted that the STRs were silent as to whether the Veteran was ever evaluated or treated for hypertension during service. The blood pressure readings in the STRs did not support a diagnosis of hypertension during service. The condition was noted decades after service. However, the Board does not find that this opinion provides much probative value as the examiner did not address the Veteran’s theory of entitlement regarding his presumed exposure to herbicide agents. Another negative VA medical opinion was provided in July 2019. The examiner noted that he had reviewed the available records, to include an article submitted by the Veteran in January 2018 indicating that a recent study occurred wherein researchers found an association between hypertension risk and exposure to herbicides, and hypertension risk and military service in Vietnam. The examiner opined that it was less likely than not that the Veteran's hypertension was related to ischemic heart disease or his military service, to include his presumed exposure to herbicide agents. The examiner noted that the Veteran had essential hypertension. This diagnosis was present in 95 percent of cases of hypertension and, by definition, is not secondary to or caused by any other disease and/or condition, including ischemic heart disease, herbicide exposure, and/or military service in Vietnam. It is a primary disorder in and of itself. In the remaining 5 percent of cases of secondary hypertension, ischemic heart disease, exposure to herbicides, and/or military service in Vietnam are not listed as a cause. The examiner stated that he came to this conclusion after review of medical literature and finding that the preponderance of current medical knowledge did not support the Veteran's claim and/or afore noted research article's conclusion. Risk, by definition, is not cause. The conditions are comorbid, separated and independent of each other. They may be present alone or together. There is no nexus or link between them. Contentions and/or opinions to the contrary are based on speculation, erroneous information, and/or personal belief. The Board notes that hypertension is not one the diseases that is presumed to be associated with exposure to herbicide agents under 38 C.F.R. § 3.309(e). However, the Veteran may still be entitled to direct service connection for hypertension based on his presumed exposure to herbicide agents during service. In Veterans and Agent Orange: Update 11 (2018), the National Academy of Sciences concluded that there was sufficient evidence of an association between hypertension and herbicide agents. The sufficient category reflects that “there is enough epidemiologic evidence to conclude that there is a positive association.” See Hypertension Upgraded in Latest Biennial Review of Research on Health Problems in Veterans that May be Linked to Agent Orange Exposure during Vietnam War, The National Academies of Sciences, Engineering, and Medicine (Nov. 15, 2018), http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137. This categorization represents a change from hypertension’s previous classification in the category of limited or suggestive evidence, meaning that “epidemiologic research results suggest an association between exposure to herbicides and a particular outcome, but a firm conclusion is limited because chance, bias, and confounding factors could not be ruled out with confidence.” Id. The Board finds that this conclusion from the National Academy of Sciences’ most recent Agent Orange update is probative evidence to support finding that the Veteran's hypertension is related to his exposure to herbicide agents during active service. Although the Board has considered the negative opinion provided by the July 2019 VA examiner regarding this theory, the Board finds that it provides minimal probative value as the examiner only addressed an article submitted by the Veteran in January 2018 without addressing the potential significance of the National Academy of Sciences’ November 2018 update concerning a positive association between hypertension and Agent Orange. Based on the foregoing, the weight of the evidence is in favor of finding that the Veteran’s hypertension is related to his presumed in-service exposure to herbicide agents. Entitlement to service connection for hypertension is therefore granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As the Board is granting entitlement to service connection on this basis, it is unnecessary to address any other theory of entitlement advanced. 2. Entitlement to service connection for residuals of a left-sided CVA, to include speech and cognitive loss, paralysis of the right side, and ambulatory imbalance; and as due to exposure to herbicide agents and/or as secondary to service-connected hypertension. The Veteran has indicated that his left-sided CVA was due to his presumed in-service exposure to herbicide agents. The record has raised the alternative theory that his left-sided CVA is secondary to his now service-connected hypertension. A review of the Veteran’s STRs does not reveal a complaint, treatment, or diagnosis related to a CVA. The record reflects that the Veteran experienced a left-sided CVA after service in December 1995. A private discharge summary for the period from December 3, 1995 to December 6, 1995 noted that the Veteran had been admitted to the hospital via the emergency room on December 3, 1995. The Veteran was out playing gold when he developed a severe attack of vertigo and pain in the right side of his body. An ambulance was called, and he was taken the emergency room. On admission, the Veteran was diagnosed as having had a CVA of the left with resulting paralysis of the right upper and lower extremity. A December 6, 1995 CT scan of the Veteran's brain revealed an acute hemorrhagic infarction. During this period of treatment, a December 3, 1995 private treatment record noted that the Veteran's past medical history was essentially unremarkable, and he denied any history of hypertension, congestive heart failure, myocardial infarction, angina pectoris, or ectopy. He also had no history of hospitalizations or operations. The impression noted that the Veteran presented with acute neurological findings secondary to cerebral hemorrhage. The Veteran probably had longstanding hypertension which had caused his left ventricular hypertrophy on EKG and renal insufficiency. The headaches that the Veteran had been experiencing for two months could be secondary to an aneurysm or uncontrolled hypertension. Another December 3, 1995 noted under the impression that the Veteran had experienced an acute left intracerebral hemorrhage secondary to uncontrolled hypertension with global dysphasia and right hemiplegia. A private December 6, 1996 CT scan of the Veteran's brain noted under the impression that there was reidentification of a left basal ganglia parenchymal hemorrhage with slight increasing edema in the interim since December 3, 1995. A subsequent private discharge summary for the period from December 6, 1995 to January 9, 1996 summarized that the Veteran had been brought to the hospital via an ambulance on December 3, 1995. He had no significant past medical history, and he had been playing golf when he had a sudden onset of slurred speech and right-sided weakness with no loss of consciousness, The Veteran had been hypertensive with an initial blood pressure of 203/129 with the right pupil greater than the left pupil and right facial droop as well as tongue deviation to the right. He was initially treated for a decrease and stabilization of his blood pressure. The Veteran's family had denied a past history of hypertension or cardiac issues, but the hospital course was complicated in part by labile hypertension. He was discharged to a private hospital for rehabilitation. The provisional diagnosis was left-sided CVA, and the final diagnosis was left-sided CVA secondary to hypertensive bleed. A private discharge summary for the period from January 9, 1996 to January 15, 1996 noted that the physical examination showed that the Veteran followed commands with some difficulty and had positive expressive aphasia. He also presented with right-sided facial droop, decreased sensation on the right, decreased shoulder shrug on the right side, tongue on the midline, and decreased sensation of the right upper extremity and right lower extremity. On initial speech therapy, the Veteran was found with moderate expressive and receptive language deficits and mild dysarthria with questionable verbal apraxia. The final diagnosis was intracranial bleeding with right-sided hemiparesis; rule out new onset of seizure disorder; rule out syncopal episode due to cardiac arrhythmia. Another private discharge summary for the period from January 17, 1996 to February 9, 1996 noted a final diagnosis of left intracranial hemorrhage with right hemipareses; aphasia; new onset of seizure disorder; and hypertension. In August 2004, a private treatment record stated that the Veteran had a history of hemorrhagic CVA and hypertension. In September 2004, a private treatment record noted that the Veteran had a prior history of hypertension and CVA with residual right foot drop. A subsequent October 2009 private treatment record noted in the impression for a magnetic resonance angiography (MRA) of the Veteran's head that there was evidence of an old hemorrhagic infarction in the left posterior basal ganglia, external capsule, corona radiata in parietal lobe. In June 2011, a VA examination related to diabetes noted that the Veteran had a stroke in 1994, subarachnoid bleed, which left him with right hemiparesis and some slurred speech. In February 2012, a VA physical medicine and rehabilitation note stated that the Veteran had a history of a CVA in 1995 with residual right hemiplegia. In a December 2012 VA treatment record, a physical examination also revealed some cognitive deficits and expressive aphasia. The assessment included right hemiparesis, upper and lower. In January 2013, a VA assessment noted that the Veteran had a past medical history of hemorrhagic stroke due to hypertension with expressive aphasia, right sensory deficits, and distal weakness. In March 2014, a VA treatment record reported that the Veteran had a history of organic affective syndrome with symptoms manifesting as irritability and low frustration tolerance after a ruptured cerebral aneurysm in 1995. In November 2014, a VA assessment noted right hemiparesis upper and lower/expressive aphasia - mild cognitive deficits status post ruptured brain aneurysm. The Board notes that although a September 2009 private treatment record related to treatment for the Veteran's eyes stated that the Veteran had a history of a brain aneurysm in 1986 that was inoperable, it is clear from the medical history noted in all the other available records that was no significant neurological medical history prior to the CVA in 1995. During a March 2017 VA examination related to heart disorders, the examiner noted that the Veteran had a history of severe hypertension. The examiner also observed that the Veteran's medical history included a hemorrhagic CVA in 1995 that was most likely related to the Veteran's poorly controlled hypertension. The examiner further stated that the Veteran's had right-sided weakness as a current residual of his CVA. In the March 2021 Informal Hearing Presentation (IHP), the Veteran’s representative provided a link to an internet article regarding high blood pressure from the Stroke Association which explained that in addition to causing a stroke due to a clot (ischemic stroke) by placing an extra strain on all the blood vessels in the body, high blood pressure can increase the likelihood of having a stroke due to a bleed (hemorrhagic stroke). Such an event could occur if an individual had an aneurysm (weakened blood vessel) in the brain. If this was damaged over time by high blood pressure, it can leak or burst, causing a bleed in the brain. The representative also provided a link to an August 2019 WebMD article, How does High Blood Pressure Raise Stroke Risk?, which similarly reported that “hemorrhagic” strokes occur when a weak blood vessel breaks open, usually because of an aneurysm, a spot that has ballooned up from pressure; and high blood pressure damages arteries and makes them more likely to tear or burst. Based on the foregoing, the record reflects that the Veteran has current residuals from his left-sided CVA in 1995. The Board notes that the March 2017 VA examiner’s opinion indicating that the left-sided CVA was caused by his hypertension is consistent with the prior assessments from the Veteran’s medical providers as well as the information from the medical articles discussed above. After considering the March 2017 VA examiner’s opinion as a whole and in the context of the record, his conclusion provides probative value as it addresses the medical issues in this case and was based on the examiner’s analysis of the evidence and current medical understanding. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). There is also no negative opinion to weigh against the March 2017’s conclusion. Consequently, the most probative evidence demonstrates that the Veteran's left-sided CVA was due to, or the result of, his now service-connected hypertension. Service connection for residuals of a left-sided CVA is therefore granted as secondary to service-connected hypertension. 38 C.F.R. § 3.310. In light of this grant of secondary service connection, the Board need not address any other theory of entitlement. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.C. Spragins, 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.