HYPERTENSION

Summary

The Veteran, an Air Force Veteran who served from April 1960 to April 1980, appeals the denial of service connection for hypertension. The Veteran filed a supplemental claim in December 2021, asserting new and relevant evidence warranted readjudication. The agency of original jurisdiction denied this, finding no new evidence. The Board, however, found that a February 2022 private medical opinion from Dr. M. S. constituted new and relevant evidence, thus warranting readjudication. This opinion linked the Veteran's hypertension to conceded in-service exposure to herbicide agents, stating it was at least as likely as not a direct result. The Board noted that the agency of original jurisdiction had favorably found the Veteran had hypertension and conceded herbicide exposure, which were binding. The Board found the evidence in equipoise, with a May 2016 VA opinion stating hypertension was likely due to aging and not service-connected, while Dr. M. S.'s opinion provided a detailed rationale linking it to Agent Orange exposure. Resolving doubt in the Veteran's favor, the Board granted service connection for hypertension.

Rationale

New and relevant evidence (private medical opinion) warranted readjudication.; Conceded herbicide exposure during Vietnam service.; Evidence in equipoise between VA opinion (aging process) and private opinion (Agent Orange link).; Benefit of the doubt resolved in Veteran's favor.

Full Decision Text

Citation Nr: A22012481
Decision Date: 07/05/22	Archive Date: 07/05/22

DOCKET NO. 220216-221133
DATE: July 5, 2022

ORDER

New and relevant evidence having been submitted, readjudication of the Veteran's claim of service connection for hypertension is warranted.

Entitlement to service connection for hypertension is granted.

FINDINGS OF FACT

1. New and relevant evidence has been received to warrant readjudication of the Veteran's claim for hypertension.

2. Resolving reasonable doubt in the Veteran's favor, his hypertension is at least as likely as not related to in-service exposure to herbicide agents.

CONCLUSIONS OF LAW

1. The criteria for readjudication of the claim of service connection for hypertension are met.  38 C.F.R. §§ 3.156(d), 3.2501.

2. The criteria for entitlement to service connection for hypertension is granted are met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from April 1960 to April 1980.

In December 2021, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of service connection for hypertension most recently addressed in a December 2018 Board decision.  In January 2022, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had not been received.

In a February 2022 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket.  Therefore, the Board of Veterans' Appeals (Board) must determine whether new and relevant evidence has been received based only on the evidence of record at the time of the supplemental claim decision on appeal, as well as any evidence submitted by the Veteran or his attorney with, or within 90 days from receipt of, the VA Form 10182.  38 C.F.R. § 20.303.

1. Readjudication of the claim of service connection for hypertension is warranted.

The Veteran contends that he submitted evidence with his petition to reopen his claim of service connection for hypertension that is new and relevant and warrants readjudication of the issue.

VA will readjudicate a claim if new and relevant evidenced is presented or secured. 84 Fed. Reg. 138, 169 (Jan. 18, 2019); 38 C.F.R. § 3.156(d).  "Relevant evidence" is evidence that tends to prove or disprove a matter in issue.  84 Fed. Reg. 138, 172 (Jan. 18, 2019); 38 C.F.R. § 3.2501(a)(1).

For VA to readjudicate the claim, the evidentiary record must include new and relevant evidence that was not of record as of the date of notice of the prior decision.  Upon receipt of a substantially complete supplemental claim, VA's duty to assist in the gathering of evidence under § 3.159 of this part is triggered and includes any such assistance that may help secure new and relevant evidence as defined in paragraph (a) of 38 C.F.R. § 3.2501 to complete the supplemental claim application.   Id

The question in this case is whether the Veteran submitted evidence after the prior final denial of his claim, and if so, whether that evidence is new and relevant to his claim.

The Veteran filed his original claim of service connection for hypertension in January 2016.  The Veteran was denied service connection for hypertension, most recently, in a December 2018 Board decision.  The appeal became final at that time.  In December 2021, the Veteran filed a VA Form 20-0995 supplemental claim, and the claim was again denied in the January 2022 rating decision on appeal.

The Board finds the Veteran submitted new evidence after the prior Board decision that is relevant to his claim.  The new and relevant evidence includes a private medical opinion, drafted by Dr. M. S., that was not already of record and may prove or disprove the Veteran's hypertension is related to service, to include exposure to herbicide agents.  Based on the foregoing, readjudication of the claim is therefore warranted.

2. Entitlement to service connection for hypertension is granted.

The Veteran contends his hypertension is related to exposure to herbicide agents during service.

The Board notes that in the January 2022 rating decision, VBA favorably found that the Veteran had a
 was again denied in the January 2022 rating decision on appeal.

The Board finds the Veteran submitted new evidence after the prior Board decision that is relevant to his claim.  The new and relevant evidence includes a private medical opinion, drafted by Dr. M. S., that was not already of record and may prove or disprove the Veteran's hypertension is related to service, to include exposure to herbicide agents.  Based on the foregoing, readjudication of the claim is therefore warranted.

2. Entitlement to service connection for hypertension is granted.

The Veteran contends his hypertension is related to exposure to herbicide agents during service.

The Board notes that in the January 2022 rating decision, VBA favorably found that the Veteran had a diagnosis of hypertension.  Additionally, VBA conceded the Veteran was exposed to herbicide agents during his service in Vietnam.  Favorable findings made by VBA are binding on the Board, unless rebutted by evidence that identifies a clear and unmistakable error in the favorable finding.  See 38 U.S.C. § 5104A; 38 C.F.R. §§ 3.104(c); 20.801(a).  Such evidence is not present in this case.  

Thus, the question becomes whether the current disability is related to service.  On this question there are probative opinions in favor of and against the claim.

The evidence against the claim includes the May 2016 VA medical opinion.  Here, the examiner opined that the Veteran's hypertension was less likely than not incurred in or caused by service as hypertension is not a presumptive claim under Agent Orange exposure.  It was opined that the Veteran's hypertension was most likely due to the aging process.  The examiner listed the many risk factors of hypertension and cited a medical article from the Mayo Clinic.  

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The evidence in favor of the claim includes a February 2022 private medical opinion drafted by Dr. M. S.  In the opinion, Dr. M. S. noted review of the medical records prior to rendering an opinion.  Dr. M. S. opined that based on the cited medical literature Agent Orange is directly associated as a causal connection with hypertension and it is as least as likely as not that the Veteran's hypertension is a direct result of his in-service exposure to Agent Orange.  The Board notes, Dr. M. S. discussed in great detail the significant studies done on the effects of Agent Orange exposure on various diseases and provided a thorough rationale as to his conclusion.  

Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current hypertension is related to conceded exposure to herbicide agents during service.  Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for hypertension is warranted.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.

 

 

R. Erdheim

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. McDuffie, 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.