Citation Nr: 21015204 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 13-18 811A DATE: March 16, 2021 ORDER Entitlement to service connection for hypertension, secondary to Agent Orange exposure, is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s hypertension is related to his in-service Agent Orange exposure. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for hypertension, secondary to Agent Orange exposure, have been met. 38 U.S.C. §§ 1110, 1116, 1154(a), 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 Marine Corps from March 1966 to November 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision that reopened and denied service connection for high blood pressure as a result of exposure to Agent Orange and contaminated water at Camp Lejeune. In December 2017 and January 2020, the Board remanded the claim to the agency of original jurisdiction (AOJ0 for further development. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in August 2017. The transcript of the hearing is of record. The Board notes that there are other claims that the Veteran has appealed to the Board, but he has requested Board hearings for each of those claims and no hearings have yet taken place. As the Veteran has already testified in connection with the claim for service connection for hypertension and has not requested a second hearing in connection with this claim, the board will adjudicate herein this claim only. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38C.F.R. §3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). As relevant, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, including Agent Orange, unless there is affirmative evidence to establish that such veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). VA regulations define hypertension as diastolic blood pressure as predominantly 90mm or greater, and isolated systolic hypertension as systolic blood pressure predominantly 160mm or greater with a diastolic blood pressure of less than 90mm, and also provide that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. Multiple blood pressure readings to be taken over multiple days as specified in Note (1) of DC 7101 applies only to confirming the existence of hypertension. Gill v. Shinseki, 26 Vet. App. 386, 391 (2013). The Veteran contends that his hypertension is due to his exposure to Agent Orange while serving in Vietnam. The Veteran was diagnosed with hypertension in an August 2012 VA examination. Also, the Veteran’s DD 214 reflects that he served in Vietnam during the applicable time period and is thus presumed to have been exposed to Agent Orange. See 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307(a)(6)(iii). As the Veteran has a current diagnosis of hypertension and is presumed to have been exposed to Agent Orange in Vietnam, the first two elements of service connection have therefore been established. The Board remanded the claim in January 2020 for a new opinion from an appropriate specialist physician on whether the Veteran’s hypertension was related to his Agent Orange exposure, and to take into consideration the changes in medical knowledge illustrated by a November 2018 National Academy of Sciences Engineering and Medicine (NAS) update. That NAS update moved hypertension to the category of “sufficient” evidence of an association from its previous classification in the “limited or suggestive” category. NAS, Veterans and Agent Orange: Update 11 (2018). While the laws and regulations pertaining to herbicide agent exposure do not require VA to consider NAS Reports in adjudicating individual claims, given that the NAS reports are published by VA in the Federal Register “VA is on notice as to the information contained therein.” Euzebio v. McDonough, __ F.3d __, No. 2020-1072, at *14-15 (Fed. Cir. Mar. 3, 2021) (citing, inter alia, Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 385 (1947) ("Congress has provided that the appearance of rules and regulations in the Federal Register gives legal notice of their contents"). Since the January 2020 Board remand, three medical opinions were added to the record. In July 2020, a VA examiner opined that the Veteran’s hypertension was less likely than not related to his in-service Agent Orange exposure due to a number of risk factors, to include older age at diagnosis, and family history. In a December 2020 Appellate Brief, the Veteran’s attorney argued that the July 2020 VA examiner’s opinion is conclusory based on generalizations, and inadequate. The Board agrees. The July 2020 VA examiner noted seven different medical conditions and medications that could lead to hypertension, and listed nine different risk factors for hypertension (to include, inter alia, diabetes, unhealthy diet, physical inactivity, obesity, tobacco use, age and race) before also noting that the Veteran does not smoke, does not have diabetes, walks 1,000 steps a day and only has mild alcohol abuse. Moreover, the July 2020 VA examiner did not reference the updated NAS study that there is sufficient evidence of an association between hypertension and Agent Orange exposure. As such, the July 2020 VA examiner’s opinion warrants little probative weight. The September 2020 VA examiner provided a negative medical opinion. The examiner opined that it was less than 50 percent probability that the Veteran’s hypertension was caused by his Agent Orange exposure during service because it was more likely related to typical factors that contribute to hypertension, including age, weight, and family history, pointing specifically at the fact that the Veteran was diagnosed in his 60’s and citing to the Center for Disease Control’s (CDC) statistic that hypertension prevalence is 63.1 percent in people over 60. Lastly, the September 2020 VA examiner also considered the findings by the NAS that relate to certain chemicals of interest and their relation to hypertension, but nevertheless concluded that the Veteran’s hypertension was more likely that not caused by the aforementioned risk factors. The Veteran’s attorney argued in the December 2020 Appellate Brief that this medical opinion is also is inadequate and nonresponsive to the January 2020 Board remand instructions, and the Board again agrees. While the September 2020 VA examiner’s opinion does reference the NAS study, it only notes “chemicals of interest” that “may” be related to hypertension, as opposed to the specific November 2018 update that indicated sufficient evidence of an association between hypertension and Agent Orange exposure. Moreover, the September 2020 VA examiner did not provide analysis of the NAS update and merely relied on risk factors. Therefore the September 2020 VA opinion is of little probative value. Lastly, the Veteran’s private treating physician of 15 years submitted a positive medical opinion in November 2020, concluding after a review of the Veteran’s record and the two aforementioned VA opinions that the Veteran’s current hypertension was very likely related to his in-service exposure to Agent Orange. While the examiner did not provide a thorough rationale to accompany his opinion, an examiner need not explicitly lay out their journey from the facts to a conclusion in order for an opinion to be considered probative. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate). Reading the examiner’s opinion as a whole and in context of the evidence of record, his conclusion that the Veteran’s hypertension is related to his service-connected Agent Orange exposure is entitled to substantial probative weight. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). While the Board could remand the case again for yet another opinion, such a request could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case.’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). Here, with two negative opinions of little probative weight, one positive opinion of significant probative weight, and the support of the NAS update, the evidence is at least evenly balanced as to whether the Veteran’s hypertension is related to his in-service Agent Orange exposure, and the evidence is sufficient to decide the claim. Thus, resolving reasonable doubt in the Veteran’s favor, entitlement to service connection for hypertension, secondary to in-service Agent Orange exposure, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board JR Cummings, 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.