Citation Nr: 23051157 Decision Date: 09/15/23 Archive Date: 09/15/23 DOCKET NO. 20-09 424 DATE: September 15, 2023 ORDER Service connection for hypertension is granted pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics (PACT) Act of 2022. FINDINGS OF FACT 1. The Veteran has a current diagnosis of hypertension. 2. The Veteran was exposed to herbicide agents during his period of active service. 3. The enactment of the PACT act added hypertension as a presumptive condition. 4. The evidence of record links the Veteran's hypertension to his preumed herbicide exposure during service in Vietnam. CONCLUSION OF LAW. The criteria for service connection for hypertension, to include as due to herbicide exposure, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, Pub. L. 117-168. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1969 to December 1970. For his honorable service, the Veteran is in receipt of the Vietnam Service Medal and Republic of Vietnam Campaign Medal with one star, and a Vietnam Campaign Medal with a device. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. See 38 C.F.R. § 3.303 (d). In such instances, a grant of service connection is warranted only when, "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." Id. Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). A veteran who served on active duty in the Republic of Vietnam from January 9, 1962, to May 7, 1975, is presumed to have been exposed to herbicide agents, absent affirmative evidence to the contrary. See 38 C.F.R. § 3.307 (a)(6)(iii). Diseases associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 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 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). On August 10, 2022, President Biden signed the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022. This legislation added hypertension as a disease presumptively associated with herbicide exposure. See Honoring our PACT Act of 2022, Pub. L. 117-168, Section 404(c). This amendment shall apply on the date of enactment to Veteran's capable of demonstrating sufficient cause (or if terminally ill, homeless, under extreme financial hardship, or more than 85 years old), and on October 1, 2026, to all others. On October 3, 2022, however, VA's Secretary released an Executive Decision Memorandum effectively designating all claims based on presumptions created by the PACT Act as "capable of demonstrating other sufficient cause," which will allow for payment of benefits prior to the applicability dates set forth in the Act. Here, the Veteran's service in the Republic of Vietnam has been established and exposure to Agent Orange is presumed. 38 C.F.R. § 3.307 (a)(6)(iii). The record also shows that he had a diagnosis of hypertension, and thus the evidence of record meets the requirement of having a current disability. Based on the above, the Board finds that service connection is warranted on a presumptive basis under the PACT Act. Accordingly, service connection for hypertension as due to herbicide exposure is granted on a presumptive basis under the PACT Act. Although service connection for hypertension can be granted on a presumptive basis under the PACT Act, the effective date of such award can be no earlier than August 10, 2022, the date of enactment of the Act. Therefore, alternate theories of entitlement to service connection, must be explored for the period prior to the PACT Act's effective date. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). With regard to a link between the Veteran's herbicide exposure and hypertension, this can either be established by presumption or with direct evidence of a link. To that end, the Board acknowledges the positive and negative etiological findings of record and finds that the evidence is in equipoise as to whether the Veteran's hypertension was caused by herbicide exposure. While the December 2018 VA diabetes mellitus examination indicated that the Veteran did not have any conditions that were at lest as likely as not, or permanently aggravated, by diabetes mellitus, a rationale was not provided. Similarly, an October 2019 letter from Dr. S.A.G., the Veteran's private physician, stated that the Veteran's hypertension was "more likely than not" secondary to his diabetes and coronary artery disease but failed to provide a rationale. In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. Brown, 11 Vet. App. 345, 348 (1998). However, the Veteran submitted a March 2020 opinion from Dr. S.R.B. finding that it was more likely than not that the Veteran's hypertension was secondary to his service-connected diabetes mellitus, type II and/or exposure to Agent Orange. With regard to the Veteran's Agent Orange exposure and his hypertension, Dr. S.R.B. cited to medical treatises that there was a "strong association between exposure to Agent Orange and hypertension." He explained: Unfortunately, since there was no clear awareness of the toxic effects of Agent Orange while the Veteran was in the military, time exposed, dose and route of exposure were never quantified. [The Veteran] has been suffering from hypertension and Agent Orange is a potential source of development of hypertension... It is imperative to recognize that Agent Orange and many other chlorinated herbicides, are retained in some body tissue for a long time (even decades), so target organ exposure continues even after external exposure ceases... Agent Orange and its inherent properties have the propensity to stay dormant in the human body for decades before symptoms are apparent. Furthermore, the Board noted that the National Academy of Science (NAS) Institute of Medicine's Veterans and Agent Orange: Update 11 (2018) upgraded hypertension from its previous classification in the category of "limited or suggestive" evidence of an association with exposure to Agent Orange to the category of "sufficient" evidence of an association. According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. Given the totality of the evidence to include the competent opinion noted above and resolving all reasonable doubt on the question of medical nexus in the Veteran's favor, the Board concludes that the criteria for service connection for hypertension are met on a direct basis. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Yoo, 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.