Citation Nr: 21023913 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 14-40 585 DATE: April 21, 2021 ORDER Entitlement to service connection for hypertension, as due to herbicide agent exposure, is granted. FINDINGS OF FACT 1. The Veteran served in Vietnam during the presumptive period; thus, exposure to herbicide agents is presumed. 2. The Veteran has a diagnosis of hypertension. 3. The evidence is at least in equipoise as to whether the Veteran’s currently diagnosed hypertension is related to his presumed exposure to herbicide agents during service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for hypertension, as due to herbicide agent exposure, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters The Veteran served with the United States Army on active duty for training from September 1966 to February 1967, and on active duty from May 1968 to December 1969, to include service in Vietnam. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019 and October 2020, the Board remanded the issue on appeal for further development. The issue has returned to the Board for further appellate consideration. Service Connection 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. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may be presumed for certain diseases if a veteran was exposed to an herbicide agent, including Agent Orange, during service, and the disease manifested to a degree of ten percent or more any time after service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Entitlement to service connection for hypertension is granted. The Veteran seeks entitlement to service connection for hypertension, to include as due to herbicide agent exposure. In this case, the record reflects that the Veteran served in the Republic of Vietnam; thus, exposure to herbicide agents has been established. VA regulations do not list hypertension as a presumptive disability associated with herbicide agent exposure. This, however, does not preclude the Veteran from establishing entitlement to service connection on a direct incurrence or other basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The National Academy of Sciences (NAS), in 2006 and 2008 updates, concluded that there was “limited or suggestive evidence of an association” between hypertension and herbicide exposure. See 75 Fed. Reg. 32,540, 32,549 (June 8, 2010); 75 Fed. Reg. 81,332, 81,333 (December 27, 2010). However, in November 2018, the NAS upgraded the relationship between hypertension and herbicide exposure from limited/suggestive to “sufficient,” indicating that “there is enough epidemiologic evidence to conclude that there is a possible association” between hypertension and herbicide exposure. See National Academies of Sciences, Engineering, and Medicine. 2018. Veterans and Agent Orange: Update 11 (2018). Pursuant to the October 2020 remand directives, the Veteran was afforded a new VA examination to determine the nature and etiology of his hypertension in January 2021. The examiner was directed to consider and discuss the 2018 NAS update. The examiner opined that it is less likely as not that the Veteran’s hypertension was caused by his military service, to include his service in Vietnam and his presumptive herbicide exposure. As rationale, the examiner stated that there is no objective evidence of an onset of hypertension in the military or shortly after discharge from service, and also, that there is no sufficient medical evidence of an association of hypertension to Agent Orange exposure. The examiner’s opinion that there is no causal relationship between herbicide exposure and hypertension is conclusory because the examiner did not provide a sufficient rationale. Furthermore, the examiner failed to adequately consider and discuss the 2018 NAS update. Thus, the January 2021 VA opinion is inadequate and of limited probative value. In sum, the Veteran has a current diagnosis of hypertension and is presumed to have been exposed to herbicide agents in service. What remains in the instant case, without the VA medical opinion, is the NAS study indicating a possible association between herbicide agent exposure and hypertension. Thus, in the instant case, the Board concludes that the evidence of a causal connection to service is in equipoise. After resolving reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted. S. Sorathia Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. MacDonald, 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.