Citation Nr: 21030282 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 10-17 473 DATE: May 18, 2021 ORDER Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents, is granted. Entitlement to residuals of a stroke, to include as secondary to hypertension, is granted. FINDINGS OF FACT 1. The Veteran's hypertension is etiologically related to service. 2. The Veteran's residuals of a stroke, is proximately caused by his service-connected hypertension. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension, to include as related to exposure to herbicide agents in service, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for residuals of a stroke, as secondary to service-connected hypertension have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April and July 2009 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). As a matter of procedural background, this appeal most recently came before the Board in September 2020, at which time it was remanded for further development. Prior to that remand, the appeal was also remanded in July 2017 and December 2018. Service Connection The law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). VA regulations state that a veteran who served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, shall be presumed to have been exposed to toxic herbicides during such service. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii). Recently, in Procopio v. Wilkie, 913 F.3d 1371, 1379 (Fed Cir. 2019) (en banc), the United States Court of Appeals for the Federal Circuit further clarified that the term "Republic of Vietnam" refers to both the Republic of Vietnam's "landmass and its 12 nautical mile territorial sea." Additionally, diseases that are presumed to be related to toxic herbicide exposure include lung and prostate cancer. See 38 C.F.R. §§ 3.307, 3.309. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents The Veteran contends that his hypertension is attributable to exposure to herbicide agents in service. Although hypertension is not a disability for which presumptive service connection is granted secondary to herbicide exposure, service-connection under a direct analysis is not precluded, presuming the Shedden criteria are met. The Board finds the first two Shedden elements have been met. Medical treatment records, including those from the Social Security Administration, note that the Veteran had a history of hypertension since at February 2006. The Veteran's DD-214 shows that he served in the Republic of Vietnam, evidenced by his receipt of Vietnam Service Medal and Vietnam Campaign Medal, and exposure to herbicide agents is presumed. The crux of the issue at hand is whether the Veteran's hypertension is related to his active service, whether due to exposure to herbicide agents or otherwise. The Board finds that the third Shedden element has been met. In November 2020, the Veteran was examined by a VA examiner who in an addendum opinion from December 2020 noted that it was as likely as not that the Veteran's hypertension was related to service. The examiner cited the findings of the National Academy of Sciences, which has published studies affirming a positive link between exposure to herbicide agents and the development of hypertension. The Board affords significant weight to the December 2020 opinion as it was rendered by a qualified medical professional after comprehensive review of current medical literature and application of that literature to the Veteran's hypertension. The Board notes that previous examinations, from April 2010 and February 2011, did not indicate support between hypertension and exposure to herbicidal agents, however, these examinations have been determined by previous Board decisions to be inadequate for the purpose of deciding the present claim on appeal, and will not be afforded significant probative value here. Resolving all doubt in the Veteran's favor, the Board finds a link between the Veteran's hypertension and his exposure to herbicide agents in service has been shown. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Therefore, service connection for the condition is warranted and the claim is granted. 2. Entitlement to residuals of a stroke, to include as secondary to hypertension The Veteran has asserted that his residuals of a stroke are related to service via his, now-service-connected hypertension. The Board finds the first and second Wallin elements have been met. The Veteran suffered a left middle cerebral artery stroke in July 2007. As per the above Order, the Veteran is service connected for hypertension. Following a review of the evidence, the Board finds that service connection for residuals of a stroke is warranted as it is related to his hypertension. In November 2020, the Veteran was afforded a VA examination to determine the etiology of his stroke residuals. Specifically, the examiner was asked to determine if the Veteran's stroke and the resulting residuals were the result of exposure to herbicidal agents in service and/or the result (by cause or aggravation) of his hypertension. The examiner opined that the Veteran's stroke and its residuals could not be linked to any potential exposure to herbicidal agents in service, noting that there was no medical literature to link the two. However, the examiner did opine that the Veteran's stroke and residuals were as likely as not related to his hypertension noting supportive medical literature. The Board affords the opinion significant probative weight, as it was provided by a qualified medical professional, specifically a cardiologist, after in-person examination of the Veteran and review of the claim's file. Because the evidence of record shows that the Veteran's stroke residuals, were more likely than not caused by his service-connected hypertension, service connection on a secondary basis for residuals of a stroke is warranted. M. Pryce Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Hernan, 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.