Citation Nr: 21029364 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 20-14 075 DATE: May 13, 2021 ORDER Entitlement to service connection for hypertension as due to herbicide exposure is granted. REMANDED Entitlement to myelofibrosis to include as due to herbicide and chemical exposure is remanded. FINDING OF FACT There is an approximate balance of positive and negative evidence as to whether the Veteran's hypertension is related to herbicide exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active duty service with the Navy from May 1967 to February 1971. This matter is on appeal from an October 2018 rating decision. The Board remanded this appeal in May 2020 for additional development. 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 Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In relevant part, 38 U.S.C. § 1154 (a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107 (b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that his hypertension is related to his service to include as due to herbicide exposure. Review of the Veteran's medical treatment records show the Veteran assessed with and receiving treatment for hypertension. In a May 2020 VA medical opinion, the examiner noted the Veteran with an established diagnosis and treatment for hypertension. As such, the Board finds the Veteran with a current disability. Review of the Veteran's service treatment record (STRs) does not show any complaints, treatments or diagnoses relating to hypertension. The Board notes in February 2020, a VA administrative decision conceded the Veteran was exposed to herbicides. The Board notes that hypertension is not recognized by VA as a presumptive disability related to exposure to herbicide agents. See 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.309 (e). However, even if a veteran is not entitled to presumptive service connection for a disease claimed as due to herbicide exposure, VA must also consider the claim on a direct service-connection basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In a May 2020 VA medical opinion, the examiner found the Veteran's hypertension was at least as likely as not related to in-service herbicide agent exposure. The examiner noted that based upon findings of the 2018 National Academies of Sciences, Engineering, and Medicine Veterans and Agent Orange: Update 11, "there is sufficient evidence of an association between at least one of the COIs [contaminants of interest] and hypertension." The examiner noted the Update's conclusion was determined on "review of years of medical research including studies showing biological plausibility, positive association with occupational studies and plausible studies of mortality due to hypertension" with the "strongest new study" published in 2016. After review of the claims record, the Board finds the positive and negative evidence of record to be in relative equipoise. As the evidence is in relative equipoise, the Veteran's claim prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The Board acknowledges that the Veteran has asserted alternative theories of entitlement for service connection for his disability to include secondary service connection from his service-connected diabetes mellitus. However, as the Board finds that the theory of direct service connection is applicable for the Veteran's issues on appeal, the Board finds it not necessary to address the Veteran's alternative theories for entitlement. Accordingly, service connection for hypertension is warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS FOR REMAND The Board finds that remand for additional development is warranted. The Veteran in August 2018 contended that his myelofibrosis is related to herbicide exposure. The Board notes a July 2018 private provider opined the claimed diagnosis was likely secondary to Agent Orange exposure. However, the provider does not provide any rationale or specific record to support the finding; as such, the May 2020 Board decision found the opinion inadequate and remanded for an adequate opinion to address the nature and etiology of the Veteran's myelofibrosis in relation to herbicide exposure. In a May 2020 VA medical opinion, the examiner found the Veteran's myelofibrosis less likely than not related to in-service herbicide exposure. The examiner referred to the findings made in the 2018 National Academies of Sciences, Engineering, and Medicine Veterans and Agent Orange: Update 11. The examiner noted the findings found "inadequate or insufficient evidence to determine whether there is an association between exposure to the COIs and other myeloid diseases including myeloproliferative neoplasms." In a February 2021 correspondence, the Veteran's representative referred to the "Veterans and Agent Orange: Update 2012" and stated it found "multiple potentially harmful exposures in addition to herbicide exposures." The representative stated the "Update 2012" found that exposure to benzene was a recognized risk factor for MDS [myelodysplastic syndromes]. The representative also refers to an article from the Mayo Clinic that noted myelofibrosis has been linked to exposure from industrial chemicals such as toluene and benzene. As the representative's contentions and referred articles were submitted after the May 2020 VA medical opinion, the Board finds that remand is warranted for an addendum opinion to address the probative evidence and whether reconsideration of the opinion is warranted. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records relating to the Veteran's myelofibrosis. 2. Return the claims file to the VA examiner who conducted the May 2020 examination for myelofibrosis, if available, for clarification and additional opinions. If that examiner is not available, the claims file should be provided to another physician to obtain the requested opinion. After review of the claims file, the examiner is asked to respond to the following: (a.) Is it as least as likely as not (a 50 percent or greater probability) the Veteran's myelofibrosis arose in service or is etiologically related to his military service to include herbicide and chemical exposure? (b.) The opinions should include a discussion of any pertinent studies or medical literature, as well as pertinent evidence on file to include the National Academies of Science, Engineering and Medicine issued Veterans and Agent Orange: Update 11 (2018); the February 2021 representative cited National Academies of Science, Engineering and Medicine issued Veterans and Agent Orange: Update 2012; and the February 2021 representative cited Mayo Clinic article discussing whether there is an association between exposure to an herbicide and chemical agents and myeloproliferative neoplasms. (c.) The examiner is to presume the Veteran has been exposed to herbicide agents. (d.) The examiner is also advised that the Veteran is competent to report in-service events and treatment, and his symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. (e.) The examiner should provide a complete rationale for any opinions provided with discussion of the facts particular to the Veteran's case. If the examiner is unable to provide any opinion request, then the examiner should state so and why. (f.) If the VA examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. A clearly stated rationale for any opinion offered should be provided. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Yang, 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.