Citation Nr: 23027062 Decision Date: 05/07/23 Archive Date: 05/07/23 DOCKET NO. 17-16 812 DATE: May 7, 2023 ORDER Entitlement to service connection for hypertension is granted, pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act). Entitlement to service connection for a cardiovascular disability, diagnosed as atrial fibrillation and bilateral lower extremity peripheral arterial/vascular disease, as secondary to the service-connected hypertension, is granted. REMANDED Entitlement to service connection for hypertension on a basis other than as pursuant to the PACT Act, is remanded. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicide agents while on active duty in the Republic of Vietnam; and under the PACT Act, hypertension is recognized as presumptively associated with exposure to herbicide agents. 2. The Veteran's current cardiovascular disability, diagnosed as atrial fibrillation and bilateral lower extremity peripheral arterial/vascular disease, is proximately due to his now service-connected hypertension. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension under the PACT Act are met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309; PACT Act, Pub. L. 117-168, 136 Stat. 1759 (2022). 2. The criteria for service connection for a cardiovascular disability, diagnosed as atrial fibrillation and bilateral lower extremity peripheral arterial/vascular disease, as secondary to the service-connected 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 military service from July 1967 to March 1970. This issue is on appeal before the Board of Veterans' Appeals (Board) from a September 2015 rating decision. The Board most recently remanded this appeal to the Agency of Original Jurisdiction in October 2022. The case has now been returned to the Board. By way of history, the Veteran originally filed his service connection claim for ischemic heart disease. In the February 2022 Remand, the Board expanded and recharacterized the Veteran's claim as a claim for a "cardiovascular disability." The evidence of record documents that the Veteran has a current diagnosis of hypertension. The Board finds that the Veteran's hypertension is included in the claim for a cardiovascular disability when broadly viewed, and the claim for hypertension is added to the current appeal. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (stating that when a veteran files a claim he or she is not seeking benefits only for a particular diagnosis, but for the affliction his condition, whatever that is, causes him or her). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 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). 1. Entitlement to service connection for hypertension. The Veteran asserts that service connection is warranted for a cardiovascular disability due to exposure to herbicide agents during service in the Republic of Vietnam. See November 2015 Notice of Disagreement (NOD). The Veteran has a current hypertension diagnosis. See September 2022 VA Medical Center current problem list. Regarding an in-service incurrence, a veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). The Vietnam era is the period beginning on February 28, 1961, and ending on May 7, 1975, for veterans who served in the Republic of Vietnam, and the period beginning on February 28, 1961, and ending on May 7, 1975, in all other cases. 38 U.S.C. § 101(29)(A). Service in the Republic of Vietnam is "service in the waters offshore and 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). Exposure to herbicide agents is conceded based on the Veteran's U.S. Army service in the Republic of Vietnam. In this regard, service connection for certain chronic diseases, including hypertension, may be established on a presumptive basis by showing that such disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service, even if there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). In addition, for veterans exposed to an herbicide agents during active service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). On August 10, 2022, the President signed into law the PACT Act. Among other things, it established a presumption for hypertension if a veteran served in the Republic of Vietnam between January 1962 and May 1975, without regard to the veteran's base location or military job specialty. See PACT Act, Pub. L. No. 117-168, § 403(d)(2) (2022). The new law is relevant to this appeal. Hypertension is listed as presumptively due to herbicide agents exposure. For the limited purpose of resolving this appeal, the Board will assume that the hypertension has manifested to at least a degree of 10 percent, particularly given the Veteran's current use of hypertension medication. See, e.g., VA treatment record dated May 2017. Moreover, there is no affirmative evidence to the contrary. As such, service connection for the Veteran's hypertension is warranted under the provisions of the PACT Act. On September 30, 2022, the VA Secretary signed an Executive Decision Memorandum (EDM), which permits the Board to begin granting service connection for disabilities, such as hypertension, that have phased-in applicability dates under the Act. Because all of the remaining legal requirements have been satisfied, service connection for hypertension under the PACT Act is granted. The claim is granted. The issue of entitlement to service connection for hypertension prior to the enactment of the PACT Act will be discussed in the remand section below. 2. Entitlement to service connection for a cardiovascular disability. The Veteran asserts that service connection is warranted for a cardiovascular disability due to exposure to herbicide agents during service in the Republic of Vietnam. See November 2015 NOD. The Veteran has a current cardiovascular disability. The Veteran's current VA Problem List dated in September 2022 contains current diagnoses of atrial fibrillation, peripheral vascular disease, and peripheral arterial vascular disease. The Veteran is also now service-connected for hypertension as a result of this Board decision. Regarding a nexus opinion, VA medical opinions were obtained in April 2022, July 2022, November 2022, February 2023, and March 2023. The April 2022 VA examiner opined that high blood pressure is a possible cause of atrial fibrillation and cited to the medical literature to support this connection. Similarly, the July 2022 examiner determined that a cause of atrial fibrillation can be hypertension. The examiner noted that the Veteran has hypertension. The February 2023 examiner found that, "pertaining to [the Veteran's] individual circumstances and specific to his case, this [Veteran] is positive for several definitely identified causative etiologies of his heart conditions." The examiner did not identify the specific "etiologies." The February 2023 examiner provided an addendum opinion in March 2023 and noted the Veteran's current hypertension. The examiner opined that hypertension (along with hyperlipidemia and smoking) are the "most common, well-established causative etiologies of atrial fibrillation and peripheral vascular disease." Upon review of the record, the Board finds the lay and medical evidence to at least be in equipoise as to whether the Veteran's current cardiovascular disability, diagnosed as atrial fibrillation and bilateral lower extremity peripheral arterial/vascular disease, is proximately due to his service-connected hypertension. As described by the March 2023 VA examiner, in particular, hypertension is a "well-established causative etiologies of atrial fibrillation and peripheral vascular disease." The other VA opinions support the findings of the March 2023 examiner and there are no contrary opinions on this specific matter. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for cardiovascular disability, diagnosed as atrial fibrillation and bilateral lower extremity peripheral arterial/vascular disease, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The claim is granted. ? REASONS FOR REMAND 1. Entitlement to service connection for hypertension on a basis other than as pursuant to the PACT Act, is remanded. As the Veteran's claim for service connection for hypertension is part of the claim for a "cardiovascular disability," the claim was pending prior to the enactment of the PACT Act. Thus, in order to fully consider his claim, the Board must consider whether there is a basis for granting the hypertension claim for all or any portion of the period on appeal prior to enactment of the PACT Act. Prior to enactment of the PACT Act, hypertension was not among the diseases that had been presumptively linked to exposure to herbicide agents. However, the National Academy of Sciences (NAS) had upgraded the likelihood of an association between hypertension and exposure to herbicides, including Agent Orange, from "limited or suggestive" evidence of an association to "sufficient" evidence of any association. See Veterans and Agent Orange Update 11 (2018). In light of that finding, before the Board can adjudicate the hypertension claim, the AOJ needs to obtain a medical opinion as to the likelihood that the Veteran's hypertension was attributable to his conceded in-service exposure to herbicide agents. See, e.g., McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021). Upon remand, this opinion must be obtained. The matter is REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's currently diagnosed hypertension. The examiner must review the claims file. The examiner is asked to opine whether the Veteran's hypertension is at least as likely as not (i.e., the likelihood is at least approximately balanced or nearly equal, if not higher) related to service, including his presumed in-service herbicide agents exposure. In so doing, the examiner must specifically consider the facts of the Veteran's case as they existed prior to passage of the PACT Act, to include giving consideration to the 2018 Veterans and Agent Orange: Update 11, which cited a NAS report for the proposition that there was at that time "sufficient" evidence of an association between hypertension and herbicide exposure. It is not sufficient to provide a negative opinion regarding whether the disability was due to herbicide agents exposure solely because hypertension is not on the list of disabilities presumptively associated with herbicide agents exposure. Provide a rationale to support the opinion. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. M. Watkins, 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.