Citation Nr: 21041236 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-53 508A DATE: July 8, 2021 ORDER Entitlement to service connection for hypertension, to include as due to herbicide agent exposure, is granted. Entitlement to service connection for atrial fibrillation and left ventricular hypertrophy as secondary to the now service-connected hypertension is granted. FINDINGS OF FACT 1. The Veteran has current diagnosis of hypertension. 2. The Veteran served in the Republic of Vietnam in 1966 and is therefore presumed to have been exposed to herbicide agents therein. 3. Epidemiologic evidence concludes that there is a positive association between hypertension and exposure to herbicide agents, including Agent Orange. 4. Resolving reasonable doubt in the Veteran's favor, his hypertension is at least as likely as not related to exposure to herbicide agents in service. 5. The Veteran's heart disability, diagnosed as atrial fibrillation and left ventricular hypertrophy, is proximately due to his service-connected hypertension. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension, to include as due to herbicide agent exposure, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for atrial fibrillation and left ventricular hypertrophy, as secondary to hypertension, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1971 to February 1974, and from February 1974 to October 1975. These matters come before the Board of Veterans' Appeals (Board) from an October 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held in December 2019 by a now-retired Veterans Law Judge (VLJ). In an April 2021 letter, the Board notified the Veteran that the VLJ who held the December 2019 hearing was no longer employed by the Board and offered the Veteran the opportunity to have an additional hearing; however, the Veteran did not respond to this letter within the allotted 30-day time period, as such, it is assumed that he declined the opportunity for another Board hearing. On review, the Board finds there was not substantial compliance with its March 2021 remand directives. Nevertheless, there is no prejudice to the Veteran in proceeding to analyzing the merits of the claims, particularly because the decision is fully favorable. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Pertinent Laws and Regulations 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 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 entitlement to direct service connection requires: (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 disability and the disease or injury incurred or aggravated during service - which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 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 favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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. Hypertension As an initial matter, the Veteran is currently diagnosed with hypertension. See October 2013 VA Examination Report. Therefore, the Veteran meets the first element of a current disability. The Veteran contends that his hypertension is related to service, to include as exposure to Agent Orange. See January 2014 Notice of Disagreement. On the issue of in-service incurrence, the RO established in the October 2013 rating decision that the Veteran is presumed to have been exposed to herbicide agents based on his service in Vietnam during the applicable time period. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Therefore, the Veteran meets the element for in-service incurrence. VA laws and 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 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). Hypertension is not one of the diseases listed under 38 C.F.R. § 3.309 (e). 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, including Agent Orange. 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 here. Based on the relatively recent scientific evidence, 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 reasonable doubt in the Veteran's favor, the Board finds that all elements of service connection for hypertension are met, and the appeal is granted. Heart Disability Aside from Hypertension Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a) (2020). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310 (b) (2020); Allen v. Brown, 8 Vet. App. 374 (1995). The Veteran in this case is currently diagnosed with other heart disabilities diagnosed as atrial fibrillation and left ventricular hypertrophy. See July 2020 VA Examination Report. Moreover, as decided herein, he is now service connected for hypertension. Accordingly, the first two elements to establish secondary service connection are satisfied. This claim therefore hinges on whether there is competent evidence of nexus between the Veteran's heart disability (atrial fibrillation and left ventricular hypertrophy) and the service-connected hypertension, and the Board finds that there is. In a July 2020 VA medical opinion, the VA examiner, a medical doctor, opined that the Veteran's atrial fibrillation and left ventricular hypertrophy did not have their onset in service or otherwise related to it, but also opined that both were likely a complication of his hypertension. The examiner had an opportunity to review the Veteran's claims file, to include the history of his heart disabilities. The Board finds the VA opinion adequate and highly probative as to the origin of the Veteran's heart disabilities, aside from hypertension. (Continued on the next page) As the Board finds sufficient evidence of a causal relationship, service connection is granted on a secondary basis for atrial fibrillation and left ventricular hypertrophy as secondary to service-connected hypertension. 38 C.F.R. § 3.310. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moldawer, 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.