Citation Nr: 21014944 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-06 709 DATE: March 16, 2021 ORDER Entitlement to service connection for hypertension secondary to in-service exposure to tactical herbicides is granted. FINDING OF FACT The record indicates the Veteran’s diagnosed hypertension is etiologically related to exposure to herbicide agents while serving in the Republic of Vietnam. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension secondary to in-service exposure to tactical herbicides have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to April 1970, with service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The matter herein on appeal was previously before the Board in November 2019, at which time it was remanded for development. It has been returned to the Board for appellate review. The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for hypertension secondary to in-service exposure to tactical herbicides Service connection may be established for disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. § 3.303. 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303 (b). The Federal Circuit has held that continuity of symptomatology under 38 C.F.R. § 3.303 (b) applies only to chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (2013). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Further, VA regulations provide that for a Veteran who has been exposed to an herbicide agent during military service, service connection for certain diseases will be presumed. See 38 C.F.R. § 3.309 (e). Herbicide agents are defined by VA regulation as a chemical used in an herbicide used by the United States, specifically noted as: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and, picloram. See 38 C.F.R. § 3.307 (a)(6)(i). The Board observes that hypertension is not listed in §3.309(e) among those diseases for which service connection will be presumed. Thus, service connection on a presumptive basis cannot be awarded. However, on a direct basis, the Board finds the criteria for service connection are met. Initially, the Board takes judicial notice of recent findings, promulgated by the National Academies of Science, Engineering, and Medicine, demonstrating a link between hypertension and exposure to Agent Orange. This organization, in consideration of troves of medical literature published between 2014 and 2017, has concluded that sufficient evidence now exists to draw a firm conclusion with respect to the etiological link between hypertension and Agent Orange exposure. The record shows that the Veteran has service in the Republic of Vietnam; accordingly, in-service exposure to Agent Orange is presumed. Current medical records, including reports associated with VA examinations, also reflect that the Veteran carries a diagnosis of hypertension and receives treatment therefor. The Board is cognizant that the record contains VA examiners’ assessments that the evidence preponderates against the proposition that hypertension is related to service in the Veteran’s case. However, greater probative weight is afforded the findings summarized above, which reveal an emerging picture in medical literature tending to demonstrate a relationship between hypertension and Agent Orange exposure. Accordingly, the Board finds the criteria for entitlement to service connection for hypertension are present in this case, and the appeal is granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Sahraie, 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.