Citation Nr: 1628407 Decision Date: 07/15/16 Archive Date: 07/28/16 DOCKET NO. 10-38 381 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for hypertension, claimed as secondary to exposure to Agent Orange, service-connected diabetes mellitus or service-connected coronary artery disease (CAD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Ashley Martin, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to March 1970. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied service connection for hypertension. The Board remanded this matter in December 2014. Pursuant to the remand, the Veteran was afforded a new VA examination. However, as is discussed below, the new examination is inadequate and the appeal must be remanded again. Barr v. Nicholson, 21 Vet. App. 303 (2007). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for hypertension. He attributes his condition to Agent Orange exposure and/or his service-connected diabetes and heart disease. In December 2014, the Board remanded for an opinion addressing aggravation. Pursuant to the remand, the Veteran was also afforded another VA examination in October 2015. The VA examiner found that it is less likely as not that the Veteran's hypertension was aggravated by his service-connected diabetes and coronary artery disease. The rationale given was that the Veteran's diagnosis of essential hypertension predates his diagnosis of diabetes and coronary artery disease. The Board finds this opinion inadequate. In providing a rationale for aggravation, the examiner noted both that the Veteran's blood pressure has been under good control with medication and the diagnosis of hypertension predated the diagnosis of his service-connected diabetes and heart disabilities. The Board remanded the claim previously because prior opinions included the fact that the hypertension predated the service-connected disabilities as the basis for finding no aggravation. Without further distinction, it appears the recent opinion considers the same basis. The examiner's rationale only addresses causation, not aggravation. Therefore, a new medical opinion addressing whether the Veteran's hypertension has been aggravated by his service-connected disabilities should be obtained. Furthermore, a medical opinion should be obtained on whether hypertension may be associated with herbicide exposure. As stated above, the Veteran attributes his condition to Agent Orange exposure. As the Veteran served in the Republic of Vietnam during the Vietnam era, his exposure to an herbicide agent in service is presumed. Hypertension is not on the list of disabilities presumed by VA to be due to herbicide exposure. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a) (6), 3.309(e). Nonetheless, the NAS IOM's Veterans and Agent Orange: Update 2010 concluded that there was "limited or suggestive" evidence of an association between herbicide exposure and hypertension. See Nat'l Acad. of Sci., Inst. of Med., Veterans & Agent Orange: Update 2010 (2011) at 694; see also Notice, 79 Fed. Reg. 20,308 - 20,313 (2014), Notice, 77 Fed. Reg. 47,924 - 47,928 (2012). Thus, there is an indication the hypertension may be associated with service; the low threshold for an examination under McLendon v. Nicholson, 20 Vet.App. 79 (2006) is met. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an appropriate VA examination to determine the etiology of the Veteran's hypertension. The entire claims file and all pertinent records must be reviewed by the examiner. After reviewing the record, the examiner should address the following: (a) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hypertension is etiologically related to service, to include exposure to herbicides (e.g., Agent Orange) in the Republic of Vietnam.. (b) If the answer to (a) is no, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hypertension was caused or aggravated by the Veteran's service-connected diabetes or coronary artery disease. The examiner's rationale should not be based on the fact that the Veteran's hypertension predates his diabetes or heart disease. The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the baseline of the severity of the hypertension before the onset of the aggravation. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should state and explain why an opinion cannot be provided without resort to speculation. 2. Thereafter, readjudicate the issue on appeal. If the claim remains denied, the RO/AMC should issue a supplemental statement of the case and afford the Veteran and his representative an opportunity to respond. The case should be returned to the Board for appellate review. The appellant 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). _________________________________________________ M.E.LARKIN 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).