Citation Nr: 1323361 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 09-48 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marines from March 1969 to March 1971 and in the United States Air Force from May 1971 to November 1972. The Veteran served in the Republic of Vietnam (Vietnam) during the Vietnam Era (defined as January 9, 1962 to May 7, 1975). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which denied the benefit sought on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action on his part is required. REMAND The Board finds that additional development is required with respect to the Veteran's claim before the Board may adjudicate it. VA must provide an examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has not received an examination addressing his hypertension disability. A veteran who had active military service in Vietnam during the Vietnam Era is presumed to have been exposed to an herbicide agent during such service, unless there is affirmative evidence to establish that the veteran was not so exposed. See 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). If such exposure occurred, the veteran is entitled to a presumption of service connection for certain disorders listed under 39 C.F.R. § 3.309(e). The Board notes that hypertension is excluded from the list of conditions entitled to presumptive service connection. See 39 C.F.R. § 3.309(e), Note 3 (2012). Nevertheless, even when presumptive service connection is not appropriate, a veteran is not precluded from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Though Combee concerns radiation exposure rather than herbicide exposure, it applies by extension to cases, such as this one, that involve herbicide exposure. See McCartt v. West, 12 Vet. App. 164, 167 (1999). Turning to the facts in the instant case, the Veteran has been diagnosed with hypertension, and he served in the Republic of Vietnam during the Vietnam Era. The Veteran's exposure to herbicides is thus conceded. He asserts that his hypertension is causally related to inservice herbicide exposure. Additionally, the Veteran has alternatively claimed that his hypertension is secondarily related to his service-connected posttraumatic stress disorder (PTSD). No VA examiner has opined as to the likelihood of such a relationship. Accordingly, the Board finds that the Veteran should be afforded a VA examination in order to determine the nature and etiology of his hypertension disability. The examiner should address both whether the Veteran's hypertension disability is directly related to service and whether such disability is secondarily related to other service-connected disability. Accordingly, the case is REMANDED for the following actions: 1. Copies of pertinent updated treatment records that are not currently of record should be obtained and added to the claims folder. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's hypertension disability. All indicated tests and studies must be performed. The claims folder must be reviewed by the examiner in conjunction with the examination. Following a review of the Veteran's claims file physical examination of the Veteran and consideration of the Veteran's statements, the examiner must describe the nature of the Veteran's hypertension in detail, and offer the following opinions: a) Is it at least as likely as not (that is, a 50 percent probability or greater) that the Veteran's hypertension had its onset in service or is otherwise related to service. In rendering this opinion, the examiner should assume that the Veteran was exposed to herbicides during active duty service. The examiner should further assume that the Veteran is competent to discuss his in-service experiences. b) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's hypertension was caused by the Veteran's service-connected PTSD? c) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's hypertension was aggravated (that is, permanently worsened beyond the natural progression) by the Veteran's service-connected PTSD? 3. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. See 38 C.F.R. § 20.1100(b) (2012).