Citation Nr: 21024134 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-23 396 DATE: April 22, 2021 ORDER Service connection for hypertension is granted. Service connection for cervical strain and intervertebral disc syndrome is granted. FINDINGS OF FACT 1. The Veteran’s diagnosed hypertension is etiologically related to his exposure to herbicide agents during service. 2. The Veteran was injured in combat and has credibly contended that he has experienced cervical pain since service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for hypertension are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria to establish service connection for cervical strain and intervertebral disc syndrome are met. 38 U.S.C. § 1110,1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1968 to November 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in January 2014 by the Department of Veterans Affairs (VA) Regional Office in Oakland, California. These claims were previously before the Board in April 2019, at which time they were remanded for further development. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Hypertension The Veteran seeks service connection for hypertension, as due to herbicide exposure. In this case, the record reflects that the Veteran served in the Republic of Vietnam; thus, exposure to herbicides is conceded. 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). However, VA regulations do not list hypertension as a presumptive disability associated with herbicide agent exposure. This does not preclude a veteran from establishing entitlement on a direct incurrence or other basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In response to the Board’s April 2019 remand, the Veteran underwent a VA examination in February 2020. At that time, the examiner concluded that it was less likely than not that the Veteran’s hypertension was due to service, to include his conceded in-service exposure to herbicides. As rationale, the examiner explained that the Veteran did not have elevated blood pressure in service or within one year of discharge, and that VA does not list hypertension as a condition which is caused by exposure to Agent Orange. The Board notes that 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). The Board notes that the NAS serves as an advisor on scientific matters and is comprised of experts in the given field. The Board finds the NAS upgrade highly probative. In contrast, the Board does not find the February 2020 VA examination report probative. The examiner, despite being asked to discuss the November 2018 NAS update, simply reiterated the findings of the former updates, in which there was limited evidence of an association between hypertension and herbicide exposure. As the report was not responsive to the Board’s request, and based on inaccurate facts, it is awarded no probative weight. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Based on this evidence, the Board finds that service connection is warranted. The Veteran has a current diagnosis of hypertension, and he is presumed to have been exposed to herbicide agents in service. Moreover, as determined above, the Board finds probative the epidemiologic evidence supporting a positive association between herbicide agent exposure and hypertension. It thus concludes that, at the very least, the evidence of a nexus is in equipoise. Accordingly, by resolving any reasonable doubt in the Veteran’s favor, the Board finds that the criteria to establish service connection for hypertension are met. See 38 U.S.C. § 5107; Gilbert, supra. The claim is granted. Cervical spine The Veteran asserts that, while serving in Vietnam, he engaged in combat with the enemy and injured his neck. Specifically, he contends that he was subjected to a blast from a mortar attack, which threw him to the ground and caused torso, head and neck injuries. He has consistently reported that he has experienced cervical spine pain since the incident. The Board notes that the Veteran received a Purple Heart medal due to back and lower extremity shell fragment injuries received in service, for which service connection has been granted, and that he was awarded service connection for a traumatic brain injury (TBI) in April 2015. In granting service connection for the shell fragment injuries in 1987 and 1998, and TBI in 2015, VA has conceded that he was injured in an in-service mortar attack. Further, the Board finds that the award of service connection for TBI indicates that the Veteran received head and neck injuries in the mortar attack. In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154 (b) and its implementing regulation, 38 C.F.R. § 3.304 (d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If a Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). In the case of a combat Veteran, not only is the combat injury presumed, but so, too, is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish entitlement to service connection, however, there still must be evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden, supra). On review of the evidence, the Board finds that service connection for a cervical disability is warranted. The Veteran has a current disability, in the form of diagnosed cervical strain. Although his service treatment records do not show complaints of, or treatment for, a cervical spine disability, VA has essentially conceded, by granting service connection for a TBI, that a combat injury to the head and neck occurred. In addition, despite the absence in the Veteran’s service treatment records, the Board accepts its occurrence per Reeves, as the Veteran has consistently described the injury as having occurred as a result of the mortar attack while serving in combat in Vietnam. Further, the Veteran has consistently reported that he has experienced cervical spine pain since service. In a November 2014 VA examination report, he indicated a 1969 onset of neck pain. He acknowledged at that time that he did not immediately seek treatment for the pain after service, but that it was ongoing and chronic. The evidence shows that the pain has been at a level of severity that, at times, it has been treated with prescribed opioids. The Board acknowledges a February 2020 VA medical opinion in which the examiner opined that it was less likely than not that the Veteran’s diagnosed cervical spine disability was incurred in or caused by his active duty service. The examiner’s conclusion was almost entirely based on the lack of evidence showing a cervical spine injury in service. As noted above, the Veteran served in combat, and his reported injury is conceded. Any opinion focused on the absence of such injury under these circumstances would be based on a factually inaccurate premise. The Board therefore finds the February 2020 medical opinion to be inadequate. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Reonal, supra. After discounting the probative value of this opinion, what remains is the competent, credible and consistent lay statements that the Veteran has manifested chronic cervical pain since service. Accordingly, the Board finds that the evidence is not sufficient to rebut the presumption that the Veteran’s current cervical spine disability manifested during his combat service. See Reeves, supra. In light of his in-service, combat-related injury, the credible history of continuous symptoms since service, and the current diagnosis, the Board resolves all reasonable doubt in his favor and finds that service connection for a cervical spine disability is warranted. See 38 U.S.C. § 5107; Gilbert, supra. The claim is granted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeremy J. Olsen, 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.