Citation Nr: 1518908 Decision Date: 05/01/15 Archive Date: 05/13/15 DOCKET NO. 11-04 198 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected coronary artery disease and diabetes mellitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to January 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. The Veteran had a personal hearing before the undersigned Acting Veterans Law Judge (AVLJ) in June 2012. A copy of the hearing transcript has been associated with the Veteran's electronic claims file. Subsequently, in May 2014, the Board remanded this claim for further development. Unfortunately, further development is necessary, and this claim is again REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND Remand is necessary in this case for two reasons. First, VA has conceded that the Veteran was exposed to herbicides while in service. Hypertension is not a disability presumptively associated with herbicide exposure. 38 C.F.R. § 3.309(e) (2014). However, the National Academy of Sciences (NAS) has placed hypertension in the category of "limited or suggestive evidence of an association" with exposure to herbicides. See e.g., Health Effects Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 32,540, 32,549 (June 8, 2010) ("In Update 2006, NAS concluded that there was 'limited or suggestive evidence of an association between exposure to the compounds of interest and hypertension.'"); Health Outcomes Not Associated With Exposure to Certain Herbicide Agents; Veterans and Agent Orange: Update 2008, 75 Fed. Reg. 81,332, 81,333 (December 27, 2010) (NAS, in 2008, categorized certain health outcomes, including hypertension, to have "'limited or suggestive evidence of an association.' This category is defined to mean that evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence."). This was reiterated in again Update 2010. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924, 47,926 (Aug. 10, 2012). Although the Veteran has not asserted that his hypertension was caused by herbicide exposure, the NAS Updates provide an indication of a relationship between herbicidal exposure and hypertension. VA opinion is necessary to determine whether there is a direct relationship the Veteran's current hypertension in-service herbicide exposure. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Second, the May 2014 remand requested that a VA examiner provide an opinion as to whether the Veteran's hypertension was aggravated by his in-service diabetes mellitus or his service-connected coronary artery disease. The June 2014 VA opinion was adequate with regard to the discussion of diabetes mellitus. However, the opinion did not adequately discuss whether the Veteran's coronary artery disease aggravated his hypertension. It discussed whether coronary artery disease is a risk factor for developing hypertension, but did not address the theory of aggravation. Therefore, there was not substantial compliance with the remand directive and an addendum opinion is needed. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's claims file to the examiner who provided the June 2014 addendum opinion. If that examiner is not available, provide the Veteran's claims file to a similarly qualified clinician. The examiner is asked to review his claims file prior to the examination, and is advised to consider the NAS Updates which concluded that there was "limited or suggestive evidence of an association" between hypertension and herbicide exposure. The examiner must provide opinions as to the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was aggravated beyond its natural progression by his service-connected coronary artery disease. b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension began during active service, is directly related to his exposure to herbicides during service, or began within one year after discharge from active service. It is not sufficient to conclude that the Veteran's hypertension is not directly caused by herbicide exposure by stating that hypertension is not listed in VA regulations as presumptively service-connected. All rendered opinions are to be supported with explanatory rationale, with citation to evidence in the record and medically accepted knowledge. 2. Following completion of the above directive, review the claims file to ensure compliance with this remand. If the examination report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. 3. Finally, after completing all of the above, and any additional development deemed warranted, readjudicate the claim on appeal. If the benefit on appeal remains denied, furnish the Veteran and his representative with a copy of a supplemental statement of the case (SSOC) and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. 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 of Veterans' Appeals 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 2014). _________________________________________________ D. MARTZ AMES Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals 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. 38 C.F.R. § 20.1100(b) (2014).