Citation Nr: 21028085 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-04 696 DATE: May 10, 2021 ORDER New and material evidence has been received, and the application to reopen the claim of entitlement to service connection for hypertension is granted. REMANDED Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. A November 2007 Board decision denied the Veteran's claim of entitlement to service connection for hypertension. 2. Evidence associated with the record since the November 2007 Board decision relates to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for hypertension. CONCLUSIONS OF LAW 1. The November 2007 Board decision that denied the Veteran's claim of service connection for hypertension is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 2. New and material evidence has been received, and the claim for service connection for hypertension is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1972 to October 1975. In June 2019, he testified at a videoconference before the undersigned; a transcript of the hearing has been associated with the record. The case was before the Board in February 2020, at which time the Board remanded the claims of entitlement to service connection for coronary artery disease, head concussion with memory loss claimed as secondary to coronary artery disease, and service connection for hypertension, so the Agency of Original Jurisdiction (AOJ) could take all appropriate action to verify whether the Veteran served in the Republic of Vietnam, to include within its territorial waters. Logbooks were subsequently obtained, and a July 2020 VA Memorandum found that exposure to herbicide agents was conceded based on the Veteran's nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019. Accordingly, service connection for diabetes mellitus type II associated with herbicide exposure was granted in a January 2021 rating decision. Service connection for coronary artery disease, myocardial infarction, and cardiomyopathy associated with herbicide exposure was granted in a separate January 2021 rating decision and assigned a 100 percent disabling rating from May 14, 2012. That rating decision also granted service connection for anoxic encephalopathy, which had previously been characterized as a head concussion, and included the rating in the overall rating assigned for the Veteran's posttraumatic stress disorder. Accordingly, the issues of service connection for coronary artery disease and a head concussion are not before the Board, as the benefits sought have been granted in full. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The AOJ has determined the Veteran's prior 2014 authorization (VA Form 21-22a) appointing an attorney (who has since withdrawn as the Veteran's representative) was incomplete, and therefore invalid. As such, the AOJ reinstated the Veteran's previously valid 2003 power of attorney authorization (VA Form 21-22) for the Veterans of Foreign Wars (VFW). Indeed, the VFW has recently provided an April 2021 brief in support of the Veteran's appeal, and is acting as the Veteran's representative. The Board will proceed with an understanding that the Veteran is represented by VFW. Following this Remand, if the Veteran wishes to change representatives in the future, he may do so. New and Material Evidence The Board last denied the Veteran's service-connection claim for hypertension in a November 2007 decision, based on a finding that hypertension was not manifested during the Veteran's active service or for many years thereafter, and was not related to any injury during service. Since the Veteran's May 2013 claim to reopen, logbooks were added to the record that helped establish the Veteran's presence in the offshore waters of Vietnam, and in turn, exposure to herbicide agents. Such evidence is new and material to the Veteran's hypertension claim, as it establishes a potential in-service injury to which hypertension may be related, and as discussed below, triggers VA's duty to assist. The claim is accordingly reopened. REASONS FOR REMAND The Veteran contends that his hypertension is related to exposure to herbicide agents, namely Agent Orange, which has been conceded. See July 2020 VA Memorandum. Although VA has not recognized a presumptive relationship between hypertension and Agent Orange, the National Academy of Sciences (NAS) 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 agent exposure. See Veterans and Agent Orange: Update 11 (2018). To date, no VA medical opinion has been obtained addressing whether the Veteran's hypertension may be related to in-service exposure to herbicides. As such, the Board finds that a VA opinion regarding the etiology of the Veteran's hypertension which considers his conceded exposure to herbicide agents is necessary before a decision on the claim. The matter is REMANDED for the following action: 1. Obtain a medical opinion from a medical professional with appropriate expertise to address whether the Veteran's hypertension is related to his military service, to include his presumed exposure to herbicide agents, or whether his hypertension is secondary to his service-connected disabilities including diabetes mellitus type II and/or coronary artery disease, myocardial infarction, and cardiomyopathy. Following a review of the entire record, the clinician should address the following: (a.) For the Veteran's hypertension, is it at least as likely as not (a 50 percent or higher probability) that such is related to his conceded exposure to herbicide agents as a result of military service in the Republic of Vietnam? In providing a response, the examiner is asked to consider and comment upon the most recent November 2018 National Academy of Sciences (NAS) study that moved hypertension from the "limited or suggestive" to "sufficient" category for association with herbicides. Veterans and Agent Orange: Update 11 (2018). (b.) Alternatively, is it at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension was caused or aggravated beyond its natural progression by his service-connected diabetes and/or coronary artery disease with myocardial infarction and cardiomyopathy, to include any medications taken for those disabilities? In this regard, the Board emphasizes that causation and aggravation are two separate inquiries, and both must be answered. A clearly stated rationale must accompany any opinion provided. 2. Thereafter, readjudicate the issue on appeal. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Polly Johnson, 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.