Citation Nr: 21021835 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-16 354 DATE: April 14, 2021 ORDER Entitlement to service connection for hypertension is granted. REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. FINDING OF FACT The Veteran’s hypertension is related to his presumed exposure to herbicide agents in the inland waterways of Vietnam. CONCLUSION OF LAW The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1963 to July 1967. He died in April 2018. The appellant is his surviving spouse. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The claims were previously before the Board in August 2018 and July 2020. In August 2018, the Board dismissed the appeal due to the Veteran’s death. In January 2019, his surviving spouse was substituted as the appellant. In July 2020, the Board remanded the claims noted above and the claim for service connection for left ear hearing loss for further development. In November 2020, the RO granted service connection for left ear hearing loss, and the appellant has not disagreed with the assigned rating or effective date. Thus, that issue is not before the Board. 1. Entitlement to service connection for hypertension is granted. The appellant asserts that the Veteran was entitled to service connection for hypertension due to his exposure to herbicide agents during service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Veteran has been diagnosed with hypertension during the appeal period, and VA has found that his active duty included service in the inland waterways of Vietnam. See VA treatment record dated February 7, 2014; see also VA Memo dated February 13, 2020. Thus, the first two elements of service connection are met because the Veteran has a current disability and an in-service injury as he is presumed to have been exposed to herbicides, including Agent Orange, while in service. 38 C.F.R. §§ 3.307, 3.309. The key issue in this matter is whether there is a nexus between the Veteran’s exposure to Agent Orange and his hypertension. The evidence of record supports the finding that such a nexus exists. Pursuant to the July 2020 remand, a VA medical opinion was obtained in October 2020. The examiner opined that it is most likely that the Veteran’s hypertension was caused by Agent Orange exposure in service. The examiner noted that, “hypertension is now on the short list to be added to presumptive conditions for AO [Agent Orange] exposure.” The examiner further noted that the evidence shows the Veteran’s exposure to Agent Orange, and that “exposed veteran[]s do have a higher incidence of hypertension.” Resolving any reasonable doubt in favor of the Veteran, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s hypertension is related to his herbicide exposure. Although there is no presumption of service connection for hypertension as due to Agent Orange exposure, the July 2020 VA examiner gave a positive nexus opinion and stated that exposed veterans do have a high incidence of hypertension. Additionally, the Board reads the VA examiner’s opinion as referencing the 2018 updated study by the National Academy of Sciences (NAS) which moved hypertension to the “sufficient” category from “limited or suggestive” category. The VA medical opinion is probative as it is shown to have been based on a review of the Veteran’s record and is accompanied by a sufficient explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, all three elements necessary to establish service connection have been met. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for hypertension is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for tinnitus is remanded. The appellant asserts that the Veteran’s tinnitus is related to his service. By way of background, in the October 2012 VA examination, the audiologist opined that the Veteran’s tinnitus is less likely than not associated with his hearing loss, reasoning that he had tinnitus in both ears, but only had hearing loss in his left ear. In July 2020, the Board remanded the claim for an additional opinion that addressed whether the Veteran’s left ear tinnitus alone, was related to the Veteran’s left ear hearing loss. An addendum opinion was received in October 2020. The VA audiologist opined that the Veteran’s tinnitus was less likely as not related to his service or caused by his left ear hearing loss. The audiologist explained that there are no records to support left ear hearing loss during service, and that the Veteran had long history of noise exposure after service. He further noted that the October 2012 exam only met the criteria for hearing loss in the left ear by 5 dB at 4000 Hz, and that there was only a mild hearing loss in the left year 45 years after separation from service. The VA October 2020 opinion did not address whether the Veteran’s tinnitus was aggravated by his service-connected left ear hearing loss as requested in the remand directives. Stegall, 11 Vet. App. at 268. Moreover, as the Veteran was newly service connected for left ear hearing loss during the pendency of the claim, a remand for an additional medical opinion is necessary. 2. Entitlement to service connection for GERD is remanded. The Board further finds that the issue of entitlement to service connection for GERD should be remanded for an additional medical opinion. In October 2020, a VA medical opinion was received. The VA examiner opined that it is not likely at all that the condition claimed was incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that when the Veteran was diagnosed in 2008, he was treated for esophageal cancer and GERD due to morbid obesity. The examiner noted that the radiotherapy for esophageal cancer and his obesity were the most likely cause for his GERD, and not any herbicide exposure in service. The Board notes that in addition to receiving radiation treatment for esophageal carcinoma, the Veteran also had radiation treatment for prostate cancer. As noted above, exposure to Agent Orange has been conceded, and prostate cancer is a condition recognized as presumptively due to herbicide exposure. Thus, remand is warranted for the purpose of determining whether the Veteran’s GERD is caused or aggravated by the treatment the Veteran received for prostate cancer. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether it is at least as likely as not that the Veteran’s tinnitus was proximately caused or aggravated by his service-connected left ear hearing loss. The examiner should note that in answering this question, two opinions are required: one for proximate causation and a second for aggravation. 2. Obtain an addendum opinion from an appropriate clinician regarding whether it is at least as likely as not that the Veteran’s GERD was proximately caused or aggravated by the treatment he received for prostate cancer, a disability of service origin. The examiner should note that in answering this question, two opinions are required: one for proximate causation and a second for aggravation. (Continued on the next page)   A fully explained rationale must be provided for the opinions expressed. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jake Choi 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.