Citation Nr: 21031228 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 15-45 493 DATE: May 20, 2021 ORDER Entitlement to service connection for hypertension is granted. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam in 1970 and is therefore presumed to have been exposed to herbicide agents therein during active duty service. 2. The Veteran has a current diagnosis of hypertension. 3. Epidemiologic studies found sufficient evidence of an association with herbicide agent exposure and hypertension. 4. The evidence is at least in equipoise as to whether the Veteran's current diagnosis of hypertension is related to his exposure to herbicide agents during active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from August 1969 to March 1972, to include service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran requested a "live videoconference" before the Board in his February 2018 Substantive Appeal. See February 2018 VA Form 9, Substantive Appeal. In a February 2019 telephone call with VA, the Veteran stated that he "wishes to withdraw his request for a (Board of Veterans Appeals) (Video Conference Hearing)." See February 2019 VA Form 21-0820, Report of General Information. The matter was remanded in September 2019 to, "[S]chedule the Veteran for a VA examination...to assist in determining the nature and etiology of his current hypertension disability." See September 2019 BVA Decision. The matter is returned to the Board for further consideration. 1. Entitlement to service connection for hypertension The Veteran contends, "[S]ervice-connected diabetes is a causal risk factor for secondary hypertension... PTSD is also a major causal factor in hypertension." See April 2021 American Legion Appellate Brief. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active duty service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was 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 current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Hypertension is considered a "chronic" disease under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service must be considered in reviewing the instant claim. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic diseases in service, a combination of manifestations, sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, is required. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the "chronic" disease became manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. A Veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to herbicide agents. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). VA regulations provide that if a Veteran was exposed to herbicide agents during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). The diseases covered by these regulations are listed under 38 C.F.R. § 3.309(e); however, the list of diseases does not include hypertension. Therefore, presumptive service connection under these regulatory provisions is not for application. A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a case by case basis, whether a Veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In making its ultimate determination, the Board must give a Veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (quoting 38 U.S.C. § 5107(b)). Factual Background At entry into active duty service, the Veteran denied "high or low blood pressure." See August 1969 Report of Medical History. The Veteran's service treatment records do not contain complaints for, a diagnosis of, or treatment relating to high blood pressure or hypertension. When he separated from active duty service, the Veteran was provided with a medical examination. The Veteran was noted with a "Normal Heart, Vascular System" and recorded a blood pressure of 138/78. The Veteran made the following affirmative statement at separation: "There have been no changes in my health since my last physical." See February 1972 Report of Medical Examination. Treatment records indicate that the Veteran "retired" as a railroad engineer in 2000. See August 2017 VA Psychiatry Note. Included in the September 2019 Board remand were instructions to "Make arrangements to obtain any additional relevant medical records." See September 2019 BVA Decision. The Veteran was provided with instructions to, "Please complete the enclosed VA Form 21-4142 and 4142a for medical records regarding hypertension." See May 2020 VA Subsequent Development Letter. As of this date, the Veteran has not responded to this request. Medical records prior to February 2011 are not available for review. In his February 2011 VA C & P examination for diabetes, the Veteran reported that he went to see his doctor in 2007 for "weakness, headaches, and loss of appetite" and "was diagnosed with diabetes and hypertension." The Veteran reported that he was started on a "diet and oral (medicines)." The 2011 examiner noted that continuous medication was required to control the Veteran's hypertension, which was not considered a "potential diabetic complication." Based on the Veteran's report that diabetes and hypertension were diagnosed simultaneously, the examiner could not determine that hypertension developed as a result of the Veteran's diabetes. The examiner did not consider the Veteran's hypertension to be "worsened or increased by the Veteran's diabetes." The Veteran reported "No effects" of diabetes (and all diagnosed complications, including hypertension) on functionality in usual occupation. Further, the Veteran denied "[e]ffects on usual daily activities." See February 2011 VA C & P Examination Note. Pursuant to the September 2019 Board remand, the Veteran was provided with a VA examination in August 2020. The examiner reviewed the claims file, examined the Veteran, and considered his statements, including the fact that he was diagnosed with hypertension "sometime in 2003." The Veteran reported no symptoms and listed Amlodipine and Losartan prescriptions for his condition. The examiner did not note a history of diastolic blood pressure predominantly 100 or more. Blood pressure readings, taken on the date of the examination, were 145/70, 149/74, and 144/67. See August 2020 VA Hypertension examination report. The August 2020 examiner did not document any pertinent physical findings, complications, conditions, signs, or symptoms related to the Veteran's hypertension. The Veteran reported a functional impact from hypertension as, "The related headaches affect the ability to focus and concentrate on his duties as a railroad worker." Based on Mayo Clinic research, the examiner identified age, race, and a diagnosis of diabetes mellitus as risk factors that are more likely causes of the Veteran's hypertension, given his complete medical history. See August 2020 VA Hypertension examination report. As directed by the September 2019 Board remand, the August 2020 examiner considered the National Academy of Sciences "Agent Orange: Update 11 (2018)," which upgraded hypertension from the category of "limited or suggestive" evidence of an association with herbicide agent exposure to the category of "sufficient" evidence. The examiner concluded: "Based on this fact finding, the claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. Corrected DD214 shows Vietnam service from (January 1970) to (November 1970)." See August 2020 VA Hypertension examination report. Analysis Treatment records reflect that the Veteran has a current diagnosis of hypertension. See May 2013, July 2014, and June 2016 VA Primary Care Notes. For the reasoning set forth below, the Board finds that evidence supports a grant of service connection on a direct basis. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The grant decided herein renders moot any alternative theory of entitlement. The Secretary of VA has determined that there is no positive association between exposure to herbicide agents and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted, including hypertension. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32, 395-32, 407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21, 260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). For this reason, hypertension is not one of the diseases listed under 38 C.F.R. § 3.309(e), "Disease associated with exposure to certain herbicide agents." However, the National Academies of Sciences, Engineering, and Medicine, on November 15, 2018, moved hypertension to the category of "sufficient" evidence of an association from its previous classification in the "limited or suggestive" category," indicating that there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and exposure to herbicide agents. See National Academy of Science (NAS) November 2018 update report titled, "Veterans and Agent Orange Update 11 (2018)." The Board finds the study provided by the NAS, which is made up of experts in the given field of science, is probative evidence that is relevant in the instant case. Conclusion In summary, based on this recent NAS determination, as cited in the opinion of the January 2020 VA examiner, the Board finds that the evidence is at least in equipoise as to whether the Veteran's hypertension is etiologically related to his exposure to herbicide agents while serving in Vietnam. As such, resolving all reasonable doubt in favor of the Veteran, the Board finds that all elements of service connection for hypertension are met, and the appeal will be granted. The grant of service connection herein on a direct basis renders moot any alternative theory of entitlement. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.303(d). MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Small, 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.