Citation Nr: 21041192 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-17 883 DATE: July 8, 2021 ORDER Entitlement to service connection for hypertension is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's hypertension is etiologically related to herbicide exposure while serving in the Korean Demilitarized Zone (DMZ). CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for establishing service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active service with the United States Army from February 1970 to October 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019 the Board remanded the claim for development. Then in January 2020, the Veteran was afforded a new VA examination. After a Supplemental Statement of the Case (SSOC), the claim is back before the Board. The Veteran contends his hypertension is due to herbicide exposure or secondary to service-connected impairments including diabetes mellitus and coronary artery disease (CAD). Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A grant for service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including the evidence pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be granted for specified chronic diseases when shown in service with subsequent manifestations at a later date, however remote, unless clearly attributable to intercurrent causes. 38 C.F.R. §§ 3.303(b), 3.307. As the Veteran, in this case, served in the DMZ from 1970 to 1971, exposure to herbicide agents, like agent orange, has been conceded and presumptive service connection has been considered. See 38 C.F.R. §§ 3.303, 3.307. For presumptive service connection for diseases associated with exposure to certain herbicide agents, the disease must manifest to a degree of 10 percent or more within any time after service, but for chloracne or other acneform diseases consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy, the disease has to manifest to a degree of 10 percent or more within one year after the last date on which the Veteran was exposed to an herbicide agent during active service. See 38 C.F.R. § 3.307(a)(6)(ii). The Board notes that hypertension is not included in the diseases listed in 38 C.F.R. § 3.309(e). Therefore, the presumption of service connection due to herbicide exposure is not warranted. However, even if hypertension is not included in the diseases listed in 38 C.F.R. § 3.309(e), a veteran can still establish service connection for such disability by showing it is directly related to service without the benefit of the presumptive provisions of 38 C.F.R.§3.309(e). In rendering a decision on appeal, 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 Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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). 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 the present case, the Veteran has a current diagnosis of hypertension and manages the condition with medication. Additionally, Agent Orange exposure has been conceded based on the Veteran's presence in and along the Korean DMZ in 1970 to 1971 during service. See Rating Decision Narrative received September 2014. As a result, the Veteran has established an in-service incurrence or event - exposure to herbicides, and a current disability - hypertension. Thus, two of the elements of service connection are established. The remaining element is whether there is a link between the Veteran's hypertension and his conceded herbicide exposure. With regard to a link, the Veteran has asserted that his hypertension is either service connected on a direct basis due to his exposure to herbicides, or, on a secondary basis due to being caused by his already service-connected diabetes mellitus and CAD. In this case, there is no need to address service connection on a secondary basis because the evidence is in equipoise with respect to direct service connection for this disability. In support of the Veteran's claim, in 2018, the National Academies of Sciences, Engineering and Medicine (NAS) concluded that there is sufficient evidence of an association between exposure to herbicide agents and hypertension. See the National Academies of Sciences, Engineering, and Medicine, Committee Review the Health Effects in Vietnam Veterans Exposure to Herbicides (Eleventh Biennial Update) (2018), available at https://www.nap.edu/catalog/25137/veterans-and-agent-orange-update-11-2018. Hypertension was moved to the category of "sufficient" evidence of an association from its previous classification in the "limited or suggestive" category. The research showed that there is enough epidemiologic evidence to conclude that there is a positive association between herbicide agent exposure and hypertension in Vietnam Veterans. Id. Against a finding of a link, the January 2020 VA medical opinion interpreted the NAS findings as demonstrating that it is less likely than not that the Veteran's hypertension is causally related to the Veteran's herbicide exposure during military service. However, the examiner's opinion was not clear because the examiner stated that an association between hypertension and herbicide exposure did exist. Moreover, the examiner stated he could not say whether that association was at least 50 percent probability level for the Veteran, so a nexus was denied. While the examiner noted that the Veteran had other risk factors for hypertension, the examiner was also unable to state which of the Veteran's risk factors were specifically responsible for the Veteran's hypertension. Accordingly, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's herbicide exposure caused his hypertension. The law is clear. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the Veteran shall be afforded the benefit of the doubt and prevail upon the issue. 38 U.S.C. § 5107(b). Resolving any reasonable doubt in favor of the Veteran, the Board finds that a link between the Veteran's hypertension and in-service herbicide exposure has been established. Accordingly, the Veteran's claim for service connection for hypertension is granted. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.