Citation Nr: 25008698 Decision Date: 07/01/25 Archive Date: 07/01/25 DOCKET NO. 17-50 483A DATE: July 1, 2025 ORDER Entitlement to an effective date of November 15, 2018, but no earlier, for service connection for hypertension is granted. FINDINGS OF FACT 1. VA received the Veteran's fully complete claims form, which when liberally construed, included a service connection claim for hypertension, on May 27, 2015. 2. On November 15, 2018, the National Academies of Sciences, Engineering, and Medicine (NAS) issued an updated report concluding that there was sufficient evidence of an association between exposure to herbicide agents and hypertension. 2. An October 2023 Board decision granted entitlement to service connection for hypertension pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act). 3. A January 2024 rating decision effectuated the Board's decision and granted entitlement to service connection for hypertension with a noncompensable rating, effective August 10, 2022 (date of PACT Act). 3. The persuasive evidence shows that the Veteran's hypertension is related to his in-service exposure to herbicide agents. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to an effective date of November 15, 2018, but no earlier, for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1116, 5101, 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.160, 3.303, 3.304, 3.307, 3.309, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from June 1969 to February 1971, to include service in the Republic of Vietnam. Exposure to herbicides is presumed. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is also the agency of original jurisdiction (AOJ). In September 2022, the Board remanded the appeal for evidentiary development. In an October 2023 Board decision, the Board granted service connection for hypertension pursuant to the PACT Act. The Veteran subsequently appealed the Board's October 2023 decision to the Court of Appeals for Veterans Claims (CAVC). In a May 2024 Joint Motion for Remand (JMR), the parties agreed to vacate the October 2023 Board decision to the extent that it denied entitlement to service connection for hypertension on a direct basis and remand the claim for additional development. In September 2024, the Board remanded the appeal for development. It has since been returned to the Board for further consideration. Effective Date Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. An exception is that the day following the date of separation from active service, or the date entitlement arose controls if the claim is received within one year after separation from active service; otherwise, the general rule applies. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). Claim means a written or electronic communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary. 38 C.F.R. § 3.1(p). An initial claim is any complete claim, other than a supplemental claim, for a benefit on a form prescribed by the Secretary. The first initial claim for one or more benefits received by VA is further defined as an original claim. 38 C.F.R. § 3.1(p)(1)(i). Initial claims include a new claim requesting service connection for a disability. Id. When there is a prior final decision in the claims file and a later readjudicated claim results in a grant of the benefit, the general rule for effective dates for readjudicated claims applies. In such cases the effective date cannot be earlier than the date of receipt of the supplemental claim. 38 C.F.R. § 3.400(h)(2). Effective March 24, 2015, VA amended its regulations to require that in order to be considered a valid claim, a claim for benefits must be submitted on a standardized form. 38 C.F.R. §§ 3.150, 3.151. Prior to March 24, 2015, a "claim" was defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998). Any communication indicating intent to apply for a benefit under the laws administered by the VA was considered an informal claim provided it identified, but not necessarily with specificity, the benefit sought. 38 C.F.R. § 3.155(a). To determine when a claim was received under the relevant regulations prior to their recent amendment, the Board must review all communications that may be construed as an application or claim. Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Any communication or action that demonstrates an intent to apply for an identified benefit may be considered an informal claim. 38 C.F.R. § 3.155(a). Thus, the essential elements of a claim prior to March 24, 2015 are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). Moreover, the Federal Circuit recently reversed the Court and held in Sellers v. Wilkie, 965 F.3d 1328 (Fed. Cir. 2020) that a claim must identify the sickness, disease, or injury for which compensation is sought, with at least at a high level of generality, before VA's duty to assist in the development of the claim is triggered. Finally, where VA compensation benefits are awarded pursuant to a liberalizing change in the law or an administrative issue, the?effective date?of the award shall be fixed in accordance with the facts found but shall not be earlier than the date of the liberalizing change in the law or VA issue. 38 U.S.C. § 5110(g); 38 C.F.R. §§3.400(p), 3.114(a). For a claimant to receive benefits dating back to the effective date of the liberalizing law or VA issue, the claim must be received within one year of the effective date of the liberalizing law or VA issue. See 38 C.F.R. §3.114(a)(1). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, 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 a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in-service, and (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 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). In addition, for Veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases 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, 1137; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown in-service, subsequent manifestations of the same chronic disease are generally service-connected. If a chronic disease is noted in service but chronicity in-service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1339-40 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. Entitlement to an effective date of May 27, 2015, but no earlier, for service connection for hypertension The Veteran seeks an effective date earlier than August 10, 2022 for the grant of service connection for hypertension. A discussion of the procedural history of this appeal is necessary before addressing the merits. Here, VA received a fully complete claims form on May 27, 2015 that included the issue of "ischemic heart disease." See May 2015 VA 21-526EZ, Fully Developed Claim (Compensation) and May 2015 VA 21-4138 Statement in Support of Claim. As alluded to in the October 2023 Board decision, the scope of the claim has since been expanded to include a claim for entitlement to service connection for hypertension. A December 2015 rating decision denied entitlement to service connection for ischemic heart disease and the Veteran filed a notice of disagreement (NOD) later that month. A statement of the case (SOC) was furnished in August 2017 and the Veteran timely perfected his appeal to the Board. In September 2022, the Board remanded the issue of entitlement to service connection for ischemic heart disease for evidentiary development. Then, an August 2023 supplemental statement of the case (SSOC) continued the denial of the claim. As discussed above, an October 2023 Board decision granted entitlement to service connection for hypertension pursuant to the PACT Act. A January 2024 rating decision effectuated this grant and assigned a noncompensable rating for hypertension, effective August 10, 2022 (date of PACT Act). The Veteran appealed this decision to CAVC and a May 2024 JMR vacated the October 2023 Board decision to the extent that it denied entitlement to service connection for hypertension on a direct basis. In September 2024, the Board remanded the appeal for more development. Again, the Board observes that in October 2023, it granted service connection for the Veteran's claimed hypertension on a presumptive basis in accordance with the PACT Act, which, inter alia, added hypertension to the list of conditions subject to service connection on a presumptive basis for Veteran's with herbicide exposure. 38 U.S.C. § 1116; see also January 2024 Rating Decision - Narrative. As such, the effective date of August 10, 2022 was based on the effective date of the PACT Act. However, as the Veteran claimed entitlement for service connection prior to August 10, 2022, and as CAVC indicated in its May 2024 JMR, VA was required to consider whether service connection for the Veteran's hypertension could have been established on another basis, including direct service connection. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); see also Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019) (holding that the Board should address all theories of service connection when reviewing a claim of service connection or earlier effective dates, as VA has a duty to maximize benefits). Thus, the Board must determine whether the criteria for service connection were met as of that date. It is not in dispute that the Veteran was exposed to herbicides in-service. It is also not in dispute that the Veteran has a current diagnosis of hypertension, for which he takes medication. See also August 2015 CAPRI noting "Essential hypertension" on the Problem List. As the first and second elements of service connection have been satisfied, the Board must consider whether the evidence shows a causal relationship between the Veteran's hypertension and his in-service herbicide exposure. Pursuant to the Board's September 2024 remand, the Veteran received a VA examination in October 2024, wherein a diagnosis of hypertension was confirmed (dated September 2024). The examiner noted that the Veteran's records indicate that he has a history of elevated blood pressure readings and diagnosis of hypertension with medication. It was also noted that the Veteran is in good control of his blood pressure readings with current treatment. There was no evidence of work-related functional limitations. Ultimately, the VA examiner determined that the Veteran's claimed hypertension is less likely than not related to service because there was no evidence of hypertension during service. Importantly, the VA examiner also determined that the Veteran's claimed hypertension is at least as likely as not caused by the indicated toxic exposure risk activities (TERA), including herbicides. The Board also acknowledges that there is positive evidence in VA's possession to support granting the Veteran's claim for hypertension. For example, a 2014 National Academy of Sciences (NAS) Report (2014 NAS Update) found "limited or suggestive evidence of association" between hypertension and herbicide agent exposure. In a 2018 NAS Update, hypertension was elevated from the "limited or suggestive evidence" category to the "sufficient evidence of an association" category. Veterans and Agent Orange: Update 11 (2018), available at https://www.nap.edu/read/25137/chapter/1, pages 465, 560, 565; see also October 2023 CAVC JMR. Here, the Board finds that the evidence supports that service connection for hypertension on a direct basis is warranted. In this case, the Board recognizes that the record includes the October 2024 VA examination report, but there are no other positive or negative etiological opinions for hypertension contained in the file. The only other earlier evidence suggesting a relationship between hypertension and military service comes in the form of the November 2018 NAS Update report, which was provided by experts in the given field of science. These experts have determined "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure." Meanwhile, the earlier 2014 NAS Update found "limited or suggestive evidence of association" between hypertension and herbicide agent exposure, which implies that a positive relationship between hypertension and herbicides was not yet established by scientific experts. Based on the scientific evidence finding enough epidemiologic evidence to conclude that there is a positive association between hypertension and exposure to herbicide agents, including Agent Orange, and the October 2024 VA opinion, the Board finds that the persuasive evidence supports finding that the Veteran's hypertension is etiologically related to his exposure to an herbicide agent while serving in Vietnam. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board concludes that the positive and negative evidence is in approximate balance that his hypertension was caused by his in-service exposure to herbicide agents. Given the above determination, the Board must now address the appropriate effective date for the Veteran's hypertension. As noted above, the effective date assigned after an original claim is based on the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Additionally, where a liberalizing law is involved as in this case, the?effective date?of the award shall be fixed in accordance with the facts found but shall not be earlier than the date of the liberalizing change in the law or VA issue. 38 U.S.C. § 5110?(g); 38 C.F.R. §§ 3.400 (p), 3.114(a). For this appeal, VA received the Veteran's fully complete claims form, which when liberally construed, included a service connection claim for hypertension, on May 27, 2015. Moreover, the October 2023 Board decision expanded the scope of the claim to include hypertension. However, as discussed above, the earliest evidence for awarding service connection for hypertension on a direct basis stems from the findings and conclusions made in the 2018 NAS Update report, which was issued on November 15, 2018. See also https://pubmed.ncbi.nlm.nih.gov/30629395/. While keeping the rules regarding liberalizing laws in mind, the Board will balance that with Combee, 34 F.3d at 1043-44 and find that the date entitlement arose for the Veteran's award of service connection for hypertension is November 15, 2018. Because the date entitlement arose is later than the date of the May 2015 claim, the Board finds that the proper effective date for the Veteran's award of service connection for hypertension can be no earlier than November 15, 2018. In summary, resolving all reasonable doubt in favor of the Veteran, his claim for an effective date as of November 15, 2018, but no earlier, for the award of the grant of service connection for hypertension is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Miller, 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.