Citation Nr: 22014075 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 18-50 202 DATE: March 11, 2022 ORDER Entitlement to service connection for hypertension is granted. FINDING OF FACT Resolving reasonable doubt in his favor, the Veteran's hypertension is related to his exposure to herbicide agents during active-duty service in Vietnam. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 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 from February 1965 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in October 2021. The transcript is of record. 1. Entitlement to service connection for hypertension The Veteran is seeking service connection for hypertension. The Veteran testified that the onset or diagnosis of his hypertension began in 1972. See Board hearing transcript. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain diseases may also be established on a presumptive basis if a veteran was exposed to herbicide agents, such as Agent Orange, during service. See 38 U.S.C. § 1116(a)(1); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). In a January 2017 VA memorandum, the Veteran's in-country service in the Republic of Vietnam was verified and thus the RO found that there was corroborating evidence to substantiate the Veteran's potential exposure to Agent Orange during the Vietnam War. In a letter dated in January 2017, VA notified the Veteran that his service treatment records cannot be located and were unavailable for review. Review of a January 2014 VA treatment record shows that the Veteran reported a medical history of hypertension, beginning in 1972. The Veterans statement in January 2014 while seeking medical treatment that his hypertension began in 1972 is found credible. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment). Thus, the Veteran's credible report of onset a mere three years after discharge is probative evidence in support of his claim. See Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011). The Board finds that there is no question that the Veteran has a current diagnosis of hypertension. See VA treatment records. While hypertension is not recognized as a presumptive condition due to exposure to herbicide agents, the National Academy of Sciences (NAS) has found in a recent study released on November 15, 2018, that "[t]he latest in a series of congressionally mandated biennial reviews of the evidence of health problems that may be linked to exposure to Agent Orange and other herbicides used during the Vietnam War found sufficient evidence of an association for hypertension." See National Academy of Sciences, Hypertension Upgraded in Latest Biennial Review of Research on Health Problems in Veterans That May Be Linked to Agent Orange Exposure During Vietnam War (Nov. 15, 2018), available at: http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137. Although the Veteran has not submitted to a VA examination regarding hypertension, remand is not necessary to obtain a medical opinion. In this regard, there is sufficient positive evidence within the VA's constructive possession to grant the claim. Specifically, as noted above, and during the October 2021 hearing before the undersigned, the Veteran's attorney specifically referenced the NAS report. The Board takes judicial notice of the 2018 NAS Update finding that there is sufficient epidemiologic evidence "to conclude that there is a positive association" between hypertension and herbicide exposure. See Monzingo v. Shinseki, 26 Vet. App. 97, 103 (2012); Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (1991) (citing Fed. R. Evid. 201(b)). In Euzebio v. McDonough, the Federal Circuit held that the correct standard for determining whether the VA has constructive possession of evidence is based on relevance and reasonableness. See Euzebio, 989 F.3d 1305, 1321-22 (Fed. Cir. 2021) (citing Lang v. Wilkie, 971 F.3d 1348, 1353 (Fed. Cir. 2020); Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992); Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010)). Applying Euzebio, the United States Court of Appeals for Veterans Claims held in Garcia v. McDonough that the VA had constructive possession of the 2014 NAS Update. See Garcia, 2021 U.S. App. Vet. Claims LEXIS 1453, 2021 WL 3625401, No. 18-2245, at *3 (Aug. 17, 2021). The Board finds that the same logic applied in Euzebio and Garcia can be applied to the 2018 NAS Update. The 2018 NAS Update is relevant and reasonably related to the issue of service connection for hypertension as a result of herbicide agent exposure, just as the 2014 NAS Update was relevant and reasonably related to a claim of service connection for hypertension due to herbicide agent exposure in Garcia. (Continued on the next page) Thus, the only probative evidence of record as to the etiology of the Veteran's hypertension is the 2018 NAS report. There is no probative evidence weighing against the claim. A remand for further clarification would constitute development of negative evidence and the Board as a matter of course does not develop for negative evidence solely to deny a claim. 38C.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"); Andrews v. McDonough, 34 Vet. App. 151 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim.") As such, the Board will resolve reasonable doubt in the Veteran's favor and finds that all elements of service connection have been met. Therefore, service connection for hypertension is granted. See 38 U.S.C. § 5107(b). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. 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.