Citation Nr: 21032028 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 19-34 826 DATE: May 25, 2021 ORDER Service connection for hypertension, as due to in-service exposure to herbicide agents, is granted. FINDING OF FACT The evidence of record supports a finding that the Veteran's hypertension is due to his in-service exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for hypertension, as due to in-service exposure to herbicide agents, has been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1958 to May 1977. This matter comes before the Board of Veterans Appeals (Board) on appeal from a November 2018 rating decision. This matter was previously before the Board in January 2020, when it was remanded for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 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 military service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Service connection can also be established through application of a statutory presumption for chronic diseases when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Furthermore, a layperson is competent to report on the onset and continuity of his or her current symptomatology. 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). Additionally, the law establishes a presumption of entitlement to service connection for certain chronic diseases associated with exposure to herbicide agents. The listed diseases are: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes mellitus (adult-onset diabetes), Hodgkin's disease, ischemic heart disease, chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). In addition, 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. 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). Under Section 3 of the Agent Orange Act of 1991, Public Law No. 102-4, 105 Stat. 11, the Secretary of Veterans Affairs entered into an agreement with the National Academy of Sciences (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicide agents used in Vietnam and various diseases suspected to be associated with such exposure. The NAS was to determine, to the extent possible, whether there is a statistical association between the suspect disease and herbicide agent exposure, taking into account the strength of the scientific evidence and the appropriateness of the methods used to detect the association; the increased risk of disease among individuals exposed to herbicide agents during the service in the Republic of Vietnam during the Vietnam era; and whether there is a plausible biological mechanism or other evidence of a causal relationship between herbicide agent exposure and the suspect disease. At the Federal Government's direction, the Institute of Medicine of the NAS issues a report every two years on the effects of Agent Orange and similar herbicide agents to various diagnoses. On November 15, 2018, the NAS issued "Veterans and Agent Orange: Update 11 (2018)," in which the 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 based on the current data on hypertension and herbicide agents. As an initial matter, the Board acknowledges that the Veteran has a current, undisputed diagnosis of hypertension. The Board also acknowledges that the Agency of Original Jurisdiction (AOJ) has conceded his in-service herbicide agent exposure. Thus, the presumptions outlined in 38 C.F.R. § 3.309(e) are applicable. 38 C.F.R. § 3.307(a)(6)(iv). However, hypertension is not among the listed diseases warranting presumptive service connection. Thus, service connection for this disability on a presumptive basis is not warranted. 38 C.F.R. § 3.309(e). Nonetheless, the Veteran may still establish service connection for his hypertension with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Here, the Veteran alleges that his hypertension is due to his in-service herbicide agent exposure. Alternatively, he also argues that his hypertension is due to alleged in-service asbestos exposure. To support his claim, the Veteran asks the Board to consider the mandated NAS reports discussed above, which found that there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and herbicide agent exposure. As there are no medical opinions, or any other evidence of record, that preponderates against the Veteran's claim for service connection, the Board finds that the weight of the NAS report is sufficient to show a medical nexus between the Veteran's hypertension and his conceded in-service exposure to herbicide agents. Thus, service connection for the Veteran's hypertension, as due to in-service exposure to herbicide agents, is granted on a direct basis. In reaching this decision, the Board also notes that, it need not address the Veteran's alleged asbestos exposure in relation to his hypertension, as direct service connection is granted herein. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Benson, Associate 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.