Citation Nr: 21008244 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 09-34 429 DATE: February 12, 2021 ORDER Service connection for hypertension is granted. FINDING OF FACT The Veteran’s current hypertension is related to his presumed herbicide exposure in the Republic of Vietnam. CONCLUSION OF LAW The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from October 1965 to July 1967, including service in the Republic of Vietnam. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2010, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. This matter was previously remanded by the Board in January 2011, December 2013, January 2016, June 2017, and July 2019 decisions for further development. In the June 2017 Board decision, the claim was remanded partly to arrange for the VA examiner, who previously provided an opinion in March 2014, or a suitable substitute if the examiner was not available, to prepare an addendum opinion regarding the Veteran’s claimed hypertension. The examiner was to provide an opinion as to whether it was at least as likely as not (i.e., was it at least equally probable) that the Veteran’s hypertension was due to his confirmed Agent Orange exposure during his service in Vietnam. The Board indicated the examiner was to disregard whether hypertension was a disorder for which a presumption was established, and, instead, answer whether the condition was a result of Agent Orange exposure even though it was not on the list of presumptive diseases. The June 2017 Board remand specifically directed the examiner to consider that the National Academy of Sciences Institute of Medicine had concluded that there was “limited or suggestive evidence of an association” between herbicide exposure (e.g. Agent Orange) and hypertension. The Board notes that pursuant to the June 2017 Board remand, a VA examiner provided an opinion as to the etiology of the Veteran’s claimed hypertension in July 2017. The examiner reported that she had reviewed the Veteran’s claims file. The examiner indicated that the Veteran’s hypertension was less likely than not directly related to his Agent Orange exposure during his period of service. The examiner stated that studies did not support a relationship between the Agent Orange exposure and the development of systemic hypertension. The Board observed that the examiner, pursuant to the July 2017 opinion, did not address the conclusion by the National Academy of Sciences Institute of Medicine that there was “limited or suggestive evidence of an association” between herbicide exposure (e.g. Agent Orange) and hypertension, as requested by the June 2017 Board remand. Additionally, the Board noted that the same examiner provided a subsequent opinion, as to the etiology of the Veteran’s claimed hypertension, in November 2018. The examiner reported that the Veteran’s claims file had been reviewed. The examiner indicated that the Veteran’s current hypertension was less likely than not related to his period of service. The examiner stated that the Veteran’s service treatment records did not substantiate a chronic issue with elevated blood pressure, and that his blood pressure reading, at the time of his separation examination, was 110/60. The examiner maintained that the blood pressure reading of 110/60 was more consistent with his usual blood pressure levels during his period of service. The examiner also maintained that the Veteran’s current diagnosis of hypertension was less likely than not related to Agent Orange exposure during his Vietnam service. It was noted that Agent Orange was an herbicide and defoliant chemical, which was capable of damaging genes of the exposed individuals and possibly their offspring. The examiner reported that exposure to Agent Orange had been associated with higher incidence of leukemia, Hodgkin’s lymphoma, and respiratory cancers, as well as ischemic heart disease. The examiner indicated that there was no association between hypertension and the established long-term effects of Agent Orange. The examiner stated that the other risk factors for the development of hypertension were at least at likely as not related to the development of that condition. The Board observed that the examiner, pursuant to the November 2018 opinion, reported that other risk factors for the development of hypertension were at least as likely as not related to the development of that condition. The Board however held that the examiner did not address those other risk factors. Additionally, the Board noted that the examiner specifically indicated that that there was no association between hypertension and the established long-term effects of Agent Orange. The Board stated that the examiner did not address the conclusion by the National Academy of Sciences Institute of Medicine that there was “limited or suggestive evidence of an association” between herbicide exposure (e.g. Agent Orange) and hypertension, as requested by the June 2017 Board remand. Further, an article in the November 2016 Journal of Occupational and Environmental Medicine entitled Herbicide Exposure, Vietnam Service, and Hypertension Risk in Army Chemical Corps Veterans suggests that herbicide exposure history and Vietnam service status were significantly associated with hypertension risk. See https://www.publichealth.va.gov/epidemiology/studies/vietnam-army-chemical-corps.asp. Moreover, in November 2018, the National Academy of Sciences 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 exposure. In light of the deficiencies with the July 2017 and November 2018 VA examiner opinions discussed above, the Board in its July 2019 decision found that the Veteran must be afforded a VA examination with the opportunity to obtain responsive etiological opinions, following a thorough review of the entire claims file, as to his claim for service connection for hypertension. Thus, the claim was remanded again. 38 C.F.R. § 3.159 (c)(4); See also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection for hypertension Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be 1) 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) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service incurrence for certain diseases, will be presumed on the basis of an association with certain herbicide agents (e.g., Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. § § 3.307 (a)(6), 3.309(e). Such a presumption, however, requires evidence of actual or presumed exposure to herbicides. Id. “Service in Vietnam” means actual service in the country of Vietnam from January 9, 1962 to May 7, 1975, and includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii); See generally Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (finding that VA’s requirement that a veteran must have stepped foot on the landmass of Vietnam or the inland waters of Vietnam for agent orange/herbicide exposure presumption is a valid interpretation of the statute). In light of the foregoing, service connection may be presumed for residuals of Agent Orange exposure by showing two elements. First, the Veteran must show that he served in the Republic of Vietnam during the Vietnam era. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Second, the Veteran must be diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 5758 (1990). The Veteran asserts that he was exposed to Agent Orange and herbicides while he served in the U.S. Army. His service includes service from October 1965 to July 1967 with 11 months of foreign/sea service. His service personnel records show service in Vietnam. As such, the Veteran is presumed to have been exposed to herbicides consistent with such service. 38 U.S.C. § 1154(a). The Veteran was afforded an additional VA examination for hypertension in January 2020 in which his hypertension diagnosis was reaffirmed. The VA examiner opined that Veteran’s hypertension was at least at likely as not incurred in service; the examiner referred to the Veteran’s medical treatment records indicating continuous treatment of his condition, and his service treatment records indicating an exposure to Agent Orange. The examiner also referred to literature from The National Academy of Sciences upgrading hypertension to the “sufficient” category, indicating enough evidence to conclude a positive correlation between hypertension and herbicide exposure, and a study among US Army Chemical Corps Veterans in which VA researchers found an association between both hypertension risk and exposure to herbicides/military service in Vietnam. See January 2020 VA Hypertension Examination. As to secondary service connection due to aggravation by a service-connected condition, the VA examiner opined that Veteran’s hypertension was not aggravated beyond its natural progression by a service-connected condition; according to an article published by Johns Hopkins Medicine, a pituitary adenoma is not likely to cause or affect hypertension unless there is a presence of Cushing’s disease or acromegaly. The examiner held that as Veteran does not have any of these conditions, it is less likely than not that the service-connected pituitary adenoma has caused or aggravated the Veteran’s hypertension. See Id. The Board finds the January 2020 VA examiner’s opinion as to direct service connection to have probative value. The Board acknowledges that in March 2014, August 2017, and December 2018 VA examiner opined that that the Veteran’s hypertension is not caused or aggravated by service-connected conditions or incurred in service due to herbicides exposure. Critically, none of these examiners adequately addressed whether the Veteran’s hypertension is related to his in-service herbicide exposure; to this point, the unfavorable medical opinions are not probative. In sum, after resolving any doubt in the Veteran’s favor, the Board finds that the medical evidence of record sufficiently establishes the Veteran’s current hypertension is related to his presumed herbicide exposure in the Republic of Vietnam. Accordingly, service connection for hypertension is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, 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.