Citation Nr: 1612221 Decision Date: 03/25/16 Archive Date: 03/29/16 DOCKET NO. 09-14 779 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for hypertension, to include as secondary to herbicide exposure or as secondary to service-connected diabetes mellitus or coronary artery disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from July 1962 and August 1965, from October 1965 to August 1971, and from September 1971 to October 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In May 2015, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. In June 2015, the Board remanded this matter for additional development. REMAND In a November 2015 appellant's post-remand brief, the Veteran's representative asserted that pursuant to VA Fast Letter 08-14, every two years, the Institute of Medicine (IOM) of the National Academies reviews evidence about the health effects of exposure to herbicides. In its release, Veterans and Agent Orange: Update 2006, IOM reported findings of limited or suggestive evidence that exposure to herbicides is associated with an increased chance of developing high blood pressure (hypertension). The representative noted that a finding of "limited or suggestive evidence" means that evidence suggests an association between exposure to herbicides and the outcome. The Veteran was provided a VA examination in February 2013 to address whether hypertension was secondary to or aggravated by diabetes. The Veteran was also provided with a VA examination in September 2015 to address whether hypertension was related to service or secondary to or aggravated by coronary artery disease. The September 2015 VA examiner opined that the Veteran's hypertension was not related to service because the service medical records showed normal blood pressure readings and they were negative for any indication of hypertension. The Veteran has been found to have served in the Republic of Vietnam during the Vietnam Era and therefore, it is presumed that he was exposed to herbicides while there. 38 C.F.R. §§ 3.307(a)(1), (6)(iii); 3.309(e)(2015). However, hypertension is not a listed disease eligible for presumptive service connection. Ischemic heart disease is a presumptive disease, but specifically does not include hypertension. 38 C.F.R. § 3.309(e) (2015). Notwithstanding the presumptive provisions, service connection for hypertension based on exposure to herbicides may also be established by showing that a disorder is, in fact, causally linked to exposure to herbicides during service. Combee v. Brown, 34 F. 3d. 1039 (Fed. Cir. 1994). The Board notes that the September 2015 VA examiner did not consider the possibility that the Veteran's hypertension might be directly etiologically linked to presumed herbicide exposure. Although the Board's previous remand did not specifically request that consideration, the Veteran has asserted that causation. Thus, on remand, the examiner's findings against direct service connection require further explanation and consideration of the possibility of presumed in-service herbicide exposure. Accordingly, the case is REMANDED for the following action: 1. Forward the entire claims file to the examiner who prepared the September 2015 VA examination report for a supplemental opinion. The examiner must review the claims file and must note that review in the report. The examiner should provide an opinion regarding whether it is at least as likely as not (50 percent probability or greater) that hypertension is related to exposure to herbicides in service. The examiner should specifically address the Institute of Medicine (IOM) reports of record and other pertinent medical literature, as appropriate, consistent with the Veteran's representative's contentions that the IOM reports suggest a link between herbicide exposure and hypertension. Any necessary tests and studies should be accomplished. The examiner should provide a rationale for the conclusions reached. If the prior examiner is unavailable, or is unable to provide the requested supplemental opinion without examining the Veteran, the Veteran should be scheduled for a VA hypertension examination, by a physician with the appropriate expertise, to provide the requested opinion. 2. Then, readjudicate the claim. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Harvey P. Roberts 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) (2015).