Citation Nr: 21014067 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-41 877 DATE: March 11, 2021 ORDER Entitlement to service connection for hypertension, to include as due to herbicide exposure, is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor his hypertension is caused by service to include in-service exposure to herbicides. 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, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from September 1964 to September 1968, with subsequent service in the U.S. Navy Reserve. This matter comes before the Board of Veterans Appeals (Board) from a February 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans’ Law Judge at a December 2017 Travel Board hearing. A transcript of the hearing has been associated with the claims file. Previously, the Veteran’s claim was before the Board most recently in July 2020 and was remanded for additional development. The Board finds there has been substantial compliance with the prior remand directives, and as such the claim is again properly before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A June 2019 order of the United States Court of Appeals for Veterans Claims (Court) implemented a June 2019 Joint Motion for Partial Remand (JMPR), vacating and remanding the September 2018 Board decision that denied entitlement to service connection for hypertension and entitlement to service connection for ischemic heart disease. Entitlement to service connection for ischemic heart disease was granted in a March 2020 rating decision. As such the issue of entitlement to service connection for hypertension is again before the Board. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. 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. Shedden v. Principi, 381 F.3d 1163, 1167 Fed. Cir. (2004). For the showing of 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, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. As to herbicide exposure, Veterans who, during active 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 to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. During the course of the Veteran’s appeal, the Blue Water Navy Vietnam Veterans Act of 2019, set forth at 38 U.S.C. § 1116A(d) (2020), clarifies that VA shall treat “a location as being offshore of Vietnam if the location is not more than 12 nautical miles seaward” of that nation. In other words, Veterans who had blue water service within that zone of 12 nautical miles are now entitled to the presumption that they had been exposed to an herbicide agent. The Veteran served aboard the USS Enterprise within the zone of 12 nautical miles, as developed by the RO, and therefore, exposure to herbicides is presumed. If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and early-onset peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(e). The enumerated diseases are AL amyloidosis; chloracne or other acneform diseases; diabetes mellitus, type 2, Hodgkin’s disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin’s lymphoma, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma), Parkinson’s disease, and ischemic heart disease. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.309(e), 3.313, 3.318. VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27630 -7641 (2003). 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). Entitlement to service connection for hypertension, to include as due to herbicide exposure The Veteran contends that service connection is warranted for hypertension, to include as due to herbicide exposure. The Veteran contends that his current hypertension is related to his in-service exposure to herbicides. As noted above, during the course of the appeal the Veteran’s exposure to herbicides has been presumed. The Veteran contends that his current hypertension is related to his in-service exposure to herbicides. The Veteran is competent to describe his ongoing symptoms, in-service duties and his statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The question for the Board is whether the Veteran has a current diagnosis of hypertension that began during active service or is at least as likely as not caused by an in-service injury or disease, including exposure to herbicides. The Veteran has a current diagnosis of hypertension. The Veteran’s service treatment records (STRs) and service personnel records have been associated with the claims file. At separation from active duty in September 1968 on the report of medical examination the Veteran’s blood pressure reading was 110/60 and clinical evaluation was normal. The Board notes that the first record of elevated blood pressure was reported in August 1980 and October 1980 from the Veteran’s Reserve service. The Board notes that service connection is not available for disease incurred during periods of inactive duty for training (IDT) and the records show the Veteran did not have active service or active duty for training (ADT) in August or October 1980. The Veteran’s service personnel records note he served aboard the USS Enterprise and based on a review of applicable deck logs, exposure to herbicides has been conceded based on service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019. The Board finds an in-service event based on the Veteran’s presumed in-service exposure to herbicides. VA and private treatment records have been associated with the claims file and note ongoing medication management and monitoring for his hypertension. The Veteran was afforded a VA examination in December 2020. The examiner noted a diagnosis of hypertension. The Veteran reported that he was diagnosed with hypertension in August 1980. The Veteran reported that he began taking blood pressure medication in 2009 and has continued since without issue. The examiner noted that the Veteran’s initial diagnosis of hypertension was confirmed by blood pressure readings taken 2 or more times on at least 3 different days with blood pressure readings of 138/74, 152/80 and 140/78. The examiner found that the Veteran’s current hypertension is at least as likely as not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Veteran’s exposure to herbicides has been presumed. The examiner noted that the Veteran did not have issues related to his hypertension prior to service. Even though hypertension is not a disease presumed to have been caused by herbicide exposure, this examiner’s review of the medical literature supports the development of hypertension related to exposure to herbicides and that it applies to this Veteran’s case. As such the examiner found that a nexus has been established based on the Veteran’s in-service exposure to herbicides and his subsequent diagnosis of hypertension in 2009. The Board finds that the December 2020 VA examiner is competent and credible. In light of the VA opinion, treatment records and Veteran’s consistent statements the Board concludes that the evidence is at least in relative equipoise as to whether the Veteran’s current hypertension is caused by service and in-service exposure to herbicides. Resolving reasonable doubt in the Veteran’s favor the Board finds that service connection is warranted for hypertension as it is at least as likely as not related to in-service events. As such the Board finds that service connection for hypertension is granted. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.R. Kardian, 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.