Citation Nr: 21040197 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 17-33 083 DATE: July 2, 2021 ORDER Entitlement to service connection for hypertension is granted. REMANDED Entitlement to service connection for a right foot disability, to include tinea pedis and foot ulcers, is remanded. FINDING OF FACT The evidence of record is at least in relative equipoise as to whether the Veteran's hypertension is proximately due to or the result of his military service, to include herbicide agent exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 1110, 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 in the United States Army from November 1968 to June 1970, including service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service and Campaign Medals. This matter is before the Board of Veterans' Appeal (Board) on appeal from a November 2013 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in January 2020. A transcript of the hearing is in the Veteran's file. In a February 2020 decision, the Board reopened the Veteran's previously denied claims for service connection for hypertension and for a right foot disability. The Board denied the right foot claim, and remanded the hypertension claim for further development. The Veteran appealed the denial of his right foot claim to the Court of Appeals for Veterans Claims (Court). In November 2020, the Court approved a Joint Motion for remand that vacated the Board's denial and returned that issue to the Board. Contemporaneously, the development for the Veteran's hypertension claim having been completed, that issue was recertified to the Board. Given the disposition of that claim, no discussion of whether the Board's directives were complied with is required. Entitlement to service connection for hypertension. The Veteran contends that his hypertension is due to his active duty service, to include herbicide agent exposure. Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current 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 in or aggravated by service. See 38 C.F.R. §§ 3.303 (a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). As to the first element of service connection, a March 2020 VA examination confirmed the Veteran's diagnosis of hypertension. Regarding the second element of service connection, the Veteran had active service in the Republic of Vietnam during the requisite time period and is, therefore, presumed to have been exposed to herbicide agents, to include Agent Orange. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). The VA had previously determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically been determined that a presumption of service connection is warranted and entitlement to presumptive service connection is limited to the conditions listed in 38 C.F.R. § 3.309(e). 59 Hypertension is not currently listed among the disabilities listed in 38 C.F.R. § 3.309(e) for which presumptive service connection is warranted. This does not, however, preclude a claimant from establishing service connection for the claimed disorders on direct basis, to include as due to exposure to herbicides. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As such, the question for the Board is whether the Veteran's hypertension is related to his in-service herbicide exposure without consideration of the presumption. In the March 2020 VA examination report, the examiner opined that he Veteran's hypertension is less likely than not related to his active service, to include herbicide exposure. The VA examiner cited the lack of findings of hypertension in service, genetic factors, family medical history, and excessive alcohol intake as the development factor for the Veteran's hypertension. Of record is a June 2021 private opinion authored by Dr. J. Klapper, found that the Veteran's hypertension is at least as likely as not related to his exposure to herbicides. Dr. Klapper highlighted the correlation between hypertension and exposure to various components, specifically dioxins, contained in Agent Orange. He cited relevant medical studies that have discussed a possible linkage between hypertension and dioxin exposure. While there are contrary opinions of record, the Board finds that the positive medical evidence is sufficient to place the evidence in relative equipoise. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for hypertension is warranted. REASONS FOR REMAND Entitlement to service connection for a right foot disability, to include tinea pedis and foot ulcers, is remanded. As noted above, this claim was remanded by the Court in November 2020 for action consistent with the terms of the parties' Joint Motion. The Joint Motion identified the failure of the February 2020 Board decision to address the adequacy of the December 2011 VA examination, considering the Veteran's lay statements related to his claimed foot disability. Specifically, the Veteran contends that he experienced recurrent foot symptoms during and after service. Thus, in light of the foregoing reasons, the Board finds that the Veteran shall be afforded another VA examination to determine the nature and etiology of the Veteran's claimed right foot disability. The matters are REMANDED for the following actions: Schedule the Veteran for an examination by an appropriate examiner(s) to determine the nature and etiology of his claimed right foot disability. The evidence of record, to include a copy of this Remand, must be made available to the examiner and the examiner must indicate that the pertinent medical records and lay statements have been reviewed. Following a review of the record, the examiner must address the following: (a) Provide diagnoses for all current right foot disabilities, to include those noted during the appeal period. (b) State whether it is at least as likely as not that the Veteran's current right foot disability is related to his active service, to include in-service occurrence of a foot rash tinea corporis, and tinea capitis. The examiner must consider the Veteran's contention that he has dealt with recurrent foot symptoms since his discharge from service. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Higgins, 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.