Citation Nr: 22010945 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 19-19 178 DATE: February 24, 2022 ORDER Entitlement to service connection for hypertension is granted. FINDINGS OF FACT 1. The Veteran's DD 214 documented that his period of active duty service included service in Vietnam from April 1968 to January 1969. 2. The Veteran's hypertension is at least as likely as not related to his presumed exposure to herbicide agents during his active duty service. CONCLUSION OF LAW The criteria to establish entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service in the United States Army from October 1967 to July 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2019 rating decision, notification of which was sent to the Veteran in a February 11, 2019 letter. In a September 2019 decision, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development and adjudication. The case has since been returned to the Board for appellate review. The Board finds that the AOJ substantially complied with prior remand directives, to the extent possible, and no further action in this regard is warranted. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (concluding that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with the Board's remand instructions). The September 2019 decision remanded the Veteran's service connection claim for hypertension as well as his service connection claim for hypothyroidism. The AOJ subsequently issued a July 2021 rating decision that granted entitlement to service connection for hypothyroidism. The grant of service connection for this disability constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, that issue is no longer before the Board. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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 present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including hypertension, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this decision, all blood pressure measurements are noted in units of pressure in millimeters of mercury (mmHg). For VA compensation purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 or greater; and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 or greater with diastolic blood pressure less than 90. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). In addition, hypertension must be confirmed by readings taken two or more times on at least three different days. See id. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(a)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(i). Section 3.307(a)(6) also provides that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). The Veteran contends that he has hypertension as a result of his exposure to herbicide agents while on active duty in the Republic of Vietnam. The Veteran's DD 214 documents that his period of active duty service included service in Vietnam from April 1968 to January 1969. Consequently, the Veteran's in-service exposure to herbicide agents is presumed. 38 C.F.R. § 3.307(a)(6)(iii). The record also shows that the Veteran has a current diagnosis of hypertension. See April 2019 VA treatment record. The Veteran's service treatment records (STRs) do not show any complaint, treatment, or diagnosis related to hypertension. In the September 1967 Report of Medical History, the Veteran denied having a history of high or low blood pressure. His blood pressure was also noted to be 132/68 in the September 1967 enlistment examination. The subsequent June 1970 separation examination noted that the Veteran's blood pressure was 122/74. In a June 1970 dental patient x-ray container and medical history, the Veteran denied ever being treated for high blood pressure. The Board notes that hypertension is not one the diseases that is presumed to be associated with exposure to herbicide agents under 38 C.F.R. § 3.309(e). However, the Veteran may still be entitled to direct service connection for hypertension based on his presumed exposure to herbicide agents during service. In Veterans and Agent Orange: Update 11 (2018), the National Academy of Sciences concluded that there was sufficient evidence of an association between hypertension and herbicide agents. The sufficient category reflects that "there is enough epidemiologic evidence to conclude that there is a positive association." See Hypertension Upgraded in Latest Biennial Review of Research on Health Problems in Veterans that May be Linked to Agent Orange Exposure during Vietnam War, The National Academies of Sciences, Engineering, and Medicine (Nov. 15, 2018), http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137. This categorization represents a change from hypertension's previous classification in the category of limited or suggestive evidence, meaning that "epidemiologic research results suggest an association between exposure to herbicides and a particular outcome, but a firm conclusion is limited because chance, bias, and confounding factors could not be ruled out with confidence." Id. Regarding the question of whether the Veteran's hypertension is related to his active service, to include his exposure to herbicide agents therein, a VA examiner provided a negative medical opinion in December 2019. The examiner noted that the Veteran received a diagnosis for hypertension in 2011. The examiner also acknowledged the National Academies of Sciences, Engineering, and Medicine report associated with the file, which upgraded the potential relationship between hypertension and herbicide agents to "sufficient" evidence. However, the examiner stated that the Veteran's hypertension appeared to be of the benign essential type which is the most common form of hypertension, and the disorder was multifactorial which included age, lifestyle choices, familial disposition, obesity, etc. It was medically acceptable "to consider these well-known established risk factor than to a herbicide exposure." There was limited reputable medical evidence to show a pathophysiologic link between herbicide exposure and hypertension. The examiner also found limited medical objective evidence to show chronicity of hypertension in relation to service and in any context its relationship to herbicide exposure. Therefore, the examiner opined that it was less likely than not that the Veteran's hypertension was etiologically related to, or had its onset during, active service, including herbicide agent exposure. After reviewing the evidence of record, the Board finds that the conclusion from the National Academy of Sciences' most recent Agent Orange update is probative evidence to support finding that the Veteran's hypertension is related to his exposure to herbicide agents during active service. Although the Board has considered the negative opinion from the December 2019 VA examiner, the Board finds it less probative than the findings from the most recent Agent Orange Update. The examiner appeared to acknowledge in the rationale that the Veteran's hypertension had multiple etiological factors without providing an adequate explanation as to why his herbicide agent exposure was not one of these factors. Moreover, the examiner's statement that there was limited reputable medical evidence to show a pathophysiologic link between herbicide exposure and hypertension does not address why the latest Agent Orange update reflecting that there is a positive association between hypertension and Agent Orange exposure is not sufficient evidence of such a link. As the Board finds that the evidence weighs persuasively in favor of the Veteran's claim, entitlement to service connection for hypertension is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In light of the Board's grant of service connection on this basis, it is unnecessary to address any other theory of entitlement that has been advanced. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.C. Spragins, 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.