Citation Nr: 21025966 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 10-30 355 DATE: April 29, 2021 ORDER Entitlement to service connection for hypertension, to include as secondary to herbicide exposure or service-connected disabilities is granted. Entitlement to service connection for residuals of a stroke, to include as secondary to herbicide exposure or service-connected disabilities is granted. FINDINGS OF FACT 1. Hypertension has been medically associated with herbicide exposure in Vietnam. 2. The Veteran’s residuals of a stroke are proximately due to his service-connected hypertension. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for residuals of a stroke as secondary to service-connected hypertension are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1965 to April 1967. This appeal comes before the Board of Veterans’ Appeals (Board) from September 2009 and February 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Nashville, Tennessee. In July 2017, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In July 2018, the Board remanded these claims for additional development and opinion on the issues of whether hypertension and/or residuals of stroke were proximately due to service-connected disabilities. In January 2018, the Board sought a medical expert opinion from an internist from the Veterans Health Administration (VHA) on the etiology of the Veteran’s hypertension. In July 2018, a medical doctor provided the requested opinion. In June 2019, the Board remanded these claims for additional development and opinion on the issues of whether hypertension and/or residuals of stroke were proximately due to herbicide exposure. The Board requested an additional addendum opinion to specifically consider that the National Academy of Sciences (NAS) had upgraded hypertension to the “sufficient” category from “limited or suggestive,” indicating that “there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137. In October 2020, the Board remanded these claims for additional development and an additional addendum opinion. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). Service Connection Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C. §§ 1110, 1131. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Regulations pertaining to herbicide exposure provide that if a Veteran served on active duty in Vietnam during the Vietnam era, the Veteran is presumed to have been exposed to Agent Orange or similar herbicides. 38 C.F.R. § 3.307. These regulations also stipulate the diseases, such as prostate cancer and diabetes mellitus, for which service connection may be presumed due to an association with exposure to herbicide agents. 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Evidence which may be considered in rebuttal of service incurrence of a disease listed in Section 3.309 will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. 38 C.F.R. § 3.307 (d). Service connection on a secondary basis is warranted when it is shown that a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. This includes disabilities aggravated or made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Pursuant to 38 U.S.C. § 1110 and 38 C.F.R. § 3.310(a), when aggravation of a Veteran’s non-service-connected condition is proximately due to or the result of a service-connected condition, such Veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See Allen, 7 Vet. App. at 448. The Board notes that the United States Court of Appeals for Veterans Claims (CAVC) has noted that conditions may wax and wane in severity, and that a medically ascertainable incremental increase in disability, may meet the definition of  “disability” – ”the impairment of earning capacity due to disease, injury, or defect.” Ward v. Wilkie, 31 Vet. App. 233, 239-40 (2019). Once the evidence has been assembled, it is the Board’s responsibility to evaluate the record. 38 U.S.C. § 7104 (a). 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. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a Veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for hypertension, to include as secondary to herbicide exposure or service-connected disabilities Review of the Veteran’s medical records reveals that his blood pressure readings were within normal limits while he was on active duty and was noted as healthy upon separation. Further, the Veteran was diagnosed with hypertension in the 1984. As such, the Board finds that service connection based upon continuity of symptomatology under 38 C.F.R. § 3.303(b) or symptoms manifesting to a compensable degree within one year of service discharge under 38 C.F.R. § 3.309(a) is not warranted. However, because the Veteran served in Vietnam, he is presumed to have been exposed to herbicides during such service. Indeed, the VA has already acknowledged the Veteran’s herbicide exposure, in granting service connection for diabetes mellitus and ischemic heart disease, which are also shown to be related to herbicides. The National Academy of Sciences (NAS) has recently upgraded hypertension to the “sufficient” category from “limited or suggestive,” indicating that “there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137. Although hypertension has not been added to the regulatory list of diseases which are presumed to have been caused by herbicide exposure, this NAS upgrade is a significant change to VA’s underlying understanding of hypertension in the context of herbicide exposure. For this reason, the Board remanded to obtain medical nexus evidence regarding the Veteran’s hypertension and a potential association with herbicide exposure in Vietnam. In March 2021, the Veteran was provided an in-person VA examination to determine the etiology of his hypertension. During the examination, the examiner reviewed the entire record noting that it reflects service in Vietnam and a diagnosis of hypertension. Upon completing the examination, the examiner opined that the Veteran’s hypertension is at least as likely as not (50 percent or greater probability) incurred in or caused by the Veteran’s herbicide exposure. The examiner reasoned that the Veteran had no issues related to hypertension prior to military service, and now has a current diagnosis of hypertension related to herbicide exposure in Vietnam. In support of this conclusion, the examiner cited the November 2018 NAS study, which concluded that there is an association between hypertension and herbicide exposure. Also, in July 2009, a separate VA examiner made a similar determination. Citing the Veteran health initiative entitled “Vietnam Veterans and Agent Orange Exposure” an independent study course released in March 2002, which revealed that 11.2 percent of Veteran’s exposed to agent orange in Vietnam are diagnosed with hypertension, as compared to 4 percent for diabetes mellitus, the examiner opined that the Veteran’s hypertension is at least as likely as not caused by his agent orange exposure while in Vietnam. However, two contrary medical opinions are of record. In December 2019, during VA examiner determined that although hypertension has been upgraded to the “sufficient” category from the “limited or suggestive” category regarding a link between agent orange exposure and Hypertension, in the Veteran’s case, the examiner did not see a strong link between his herbicide exposure and his hypertension due to the fact that he served from June 1965 to April 1967. Also, the Veteran’s service treatment records are absent for any diagnosis of hypertension or soon after service and other factors like aging, family history, obesity, poor diet, alcohol intake, etc. are more likely than not the contributing causes. In May 2014, a VA examiner noted that she is not aware of any connection (real or conceded) of agent orange causing hypertension. Further, the examiner opined that the Veteran’s hypertension was diagnosed in the late 1980’s, his hypertension is essential, and the etiology of his hypertension is genetics and lifestyle factors. Therefore, the examiner concluded that the Veteran’s hypertension is less likely than not causally related to agent orange exposure. The Board accords at least equal weight to the opinions for and against the Veteran’s claim. The positive opinions reflect thorough review of the Veteran’s medical history, the NAS study, medical literature, and a well-explained application of the study’s conclusions to the facts of the Veteran’s medical situation. Therefore, resolving reasonable doubt in favor of the Veteran, the Veteran’s hypertension is due to herbicide exposures in Vietnam.  See Wise, 26 Vet. App. at 531 (“By requiring only an ‘approximate balance of positive and negative evidence’..., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”) The claim, therefore, is granted. 2. Entitlement to service connection for residuals of a stroke, to include as secondary to herbicide exposure or service-connected disabilities As stated above, service connection on a secondary basis is warranted when it is shown that a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. This includes disabilities aggravated or made chronically worse by a service-connected disability. Allen, 7 Vet. App. 439 (1995) (en banc). Here, the Veteran seeks entitlement to service connection for residuals of stroke, to include as secondary to herbicide exposure or service-connected disabilities. Because the benefit sought on appeal can be granted in full on a secondary basis, the Board’s adjudication will consider only entitlement to secondary service connection. See 38 C.F.R. § 3.310. Review of the Veteran’s service treatment records reveal no complaints, treatment, or diagnosis of any disabilities related to a stroke. Further, the Veteran’s separation exam noted the Veteran as healthy. In January 2007, the Veteran suffered a stroke, which required him to remain in the hospital for 5 days. At the hospital, the Veteran was diagnosed with a cerebrovascular accident and stroke (CVA), which impacts his left arm and leg. The Veteran continues to feel weakness on his left side, as compared to his right, and uses a cane for balance. Additionally, the Veteran is service connected for hypertension, ischemic heart disease, varicose veins of the right lower extremity, type II diabetes mellitus with bilateral cataracts, and peripheral neuropathy. In connection with this claim, the Veteran underwent a VA examination in May 2014, where the examiner elicited a lay history from the Veteran, reviewed the entire claims file, and performed a physical examination. During the examination, the examiner opined that the Veteran’s CVA is at least as likely as not incurred in or caused by the Veteran’s hypertension. The examiner reported the Veteran’s long history of poorly controlled hypertension, noting that hypertension is the most common cause of CVAs. Thus, the examiner concluded that the Veteran’s hypertension is as likely as not the etiology of his CVA. Upon review of the evidence, the Board finds that service connection for residuals of a stroke on a secondary basis is warranted. The Veteran presently experiences balance and weakness on his left side due to his January 2007 CVA; the Veteran is presently service connected for hypertension; and there is medical evidence supporting the conclusion that is as likely as not that the Veteran’s hypertension caused his January 2007 CVA. Accordingly, service connection for residuals of stroke as secondary to service-connected hypertension is granted. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Patrick C. Brady, Attorney Advisor 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.