Citation Nr: 1637536 Decision Date: 09/23/16 Archive Date: 09/30/16 DOCKET NO. 09-20 565 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Entitlement to service connection for hypertension, to include as secondary to in-service herbicide exposure. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to February 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. In February 2011 and March 2012 the Board remanded the case to the RO for further development and adjudicative action. In an August 2015 decision, the Board denied the Veteran's claim for entitlement to service connection for hypertension, to include as secondary to the service-connected diabetes mellitus, type 2. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). While his claim was pending at the Court, the Veteran's representative and the VA Office of General Counsel filed a Joint Motion requesting that the Court vacate the Board's decision and remand the case to the Board for further development and readjudication. In a March 2016 Order, the Court granted the Joint Motion. The case was returned to the Board. In August 2016, the Board received additional evidence in support of the Veteran's claim, along with a waiver of review of the newly submitted evidence by the Agency of Original Jurisdiction. This appeal was processed using the Virtual Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. 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. In a February 2004 rating decision, the RO granted service connection for the Veteran's diabetes mellitus, type 2, based on a finding that the Veteran was presumed exposed to Agent Orange while serving along the Demilitarized Zone in Korea during service from April 1970 to March 1971. Following that decision, the Veteran sought service connection for his hypertension, which he asserted was related to his diabetes. In July 2011 and March 2012 opinions, VA examiners opined that the Veteran's hypertension was neither caused by, nor aggravated by, the service-connected diabetes mellitus. In an August 2015 decision, the Board denied the Veteran's claim of service connection for hypertension, finding that hypertension was first manifested several years following service discharge; it was not a disease that had been determined by VA's Secretary to have a positive association with in-service herbicide exposure, and it was not otherwise shown to be related to in-service herbicide exposure. The Veteran appealed that determination to the CAVC. In a March 2016 Joint Motion, the parties agreed that VA had a duty to obtain a medical examination or opinion as to the likely etiology of the Veteran's hypertension. McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006). In this regard, the Joint Motion pointed out that the examinations of record only addressed secondary service connection and did not address the likely etiology of the hypertension. Moreover, the Court has made clear that "[a] medical nexus opinion finding a condition is not related to service because the condition is not entitled to presumptive service connection, without clearly considering direct service connection, is inadequate on its face." Stefl v. Nicholson, 21 Vet.App 120, 124 (2007). The Court granted the Joint Motion in a March 2016 Order and the case was returned to the Board. In August 2016, the Veteran's attorney submitted argument and evidence in support of the Veteran's appeal. The attorney obtained a medical opinion from Dr. V.C., MD; and, asserts that, "[Dr. V.C.'s] opinion is sufficiently detailed, adequate, and probative and answers the very question of whether the Veteran's hypertension was incurred during service." The attorney also suggested that, "[The] Board should rely upon this medical evidence to adjudicate the issue and not remand for any unnecessary additional opinion and delaying the Veteran's appeal." Certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service. See 38 C.F.R. §§ 3.307 (a)(6), 3.309(e) (2015). However, hypertension is not among the diseases eligible for presumptive service connection under section 3.309(e). Id. Nevertheless, service connection for hypertension may still be established with proof of direct causation. See Polovick v. Shinseki, 23 Vet.App. 48, 52-53 (2009); Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007); McCartt v. West, 12 Vet. App. 164, 167 (1999); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Dr. V.C. opined that the Veteran's hypertension is, as likely as not, caused by in-service herbicide exposure. The rationale provided is that the relevant scientific data suggests such a link, and therefore hypertension should be added to the list of presumptive diseases at 38 C.F.R. § 3.309(e). While the Board finds Dr. V.C.'s opinion probative as to whether hypertension should be added to the list of presumptive diseases with a positive association to herbicide exposure, this rationale alone does not provide an adequate basis for finding that the Veteran's service, including his in-service herbicide exposure, as likely as not, resulted in his hypertension. Although Dr. V.C. acknowledged that the Veteran's medical history included diabetes mellitus, hypertension, hyperlipidemia, gastro-esophageal reflux disease (GERD), and severe peripheral vascular disease and severe carotid artery stenosis, Dr. V.C. did not indicate what effect these conditions have on the development of the Veteran's hypertension. Rather, Dr. V.C. cites to scientific data from the National Academy of Sciences (NAS) affirming the conclusion that there is limited or suggestive evidence of an association between herbicide exposure and hypertension. Dr. V.C. further notes that the scientific data supporting this conclusion is actually stronger than the scientific data affirming the conclusion that there is limited or suggestive evidence of an association between herbicide exposure and ischemic heart disease (IHD), a disease for which the presumption of service connection applies. This is the rationale provided for the opinion that the Veteran's hypertension was, as likely as not, caused by in-service Agent Orange exposure. Again, this opinion is based on scientific evidence suggesting an association between herbicides and hypertension for purposes of whether hypertension should be added to the list of presumptive diseases under 38 C.F.R. § 3.309(e); however, it does not consider what effect the Veteran's particular medical history has in relation to his development of hypertension. A review of the record also shows that the Veteran has a history of high triglycerides, and that he required surgery for his severe peripheral vascular disease. This raises the possibility that the Veteran's medical history could have played a role in the development of his hypertension; yet, Dr. V.C. did not address what impact, if any, such medical history likely played in the development of the Veteran's hypertension. Likewise, Dr. V.C. did not indicate what role, if any, the Veteran's family history likely played in his development of hypertension. Significantly, in claims such as this, involving direct service connection based on herbicide exposure, other factors may affect the analysis, such as whether there are other risk factors that might be the cause of the condition for which benefits are sought, and whether the condition has manifested itself in an unusual manner. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009) (opinions as to direct service connection are inadequate when based solely on NAS findings without regard to the appellant's personal risk factors). The Veteran's medical history is significant for vascular disease. A July 1993 memo from Dr. D.H., MD indicates that the Veteran had a complete occlusion of the left iliac and complete occlusion of the right common femoral artery at that time, and would require aortofemoral bypass graft to correct the problem. A June 1997 memo from a doctor at Vascular Surgery Associates reveals that the Veteran underwent resection and grafting of a juxtarenal abdominal aortic aneurysm in September 1996. The Veteran had no further cardiac problems, coronary artery disease, angina, or arrhythmia; however, it was noted that his hypertension had been slightly more of a problem and required the addition of a second medication for control. Private medical records from Christiana Care Health Services show that the Veteran had a 25-year, 1 pack per day smoking history, and quit in 1993. In December 2001, the Veteran underwent a right carotid endarterectomy and patchplasty because of severe right carotid and left carotid stenosis. Private lab results from December 2003 reveal high triglycerides of 536. These medical findings, and any potential risk factors should be addressed in a VA medical opinion. In accordance with the directives set forth in the Joint Motion, a remand is warranted so that the Veteran may be provided with a VA examination or opinion as to the etiology of his hypertension. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all VA medical records dated from February 2014 onward. 2. With appropriate authorization from the Veteran, obtain and associate with the claims file any outstanding private treatment records identified by the Veteran as pertinent to his claim of service connection for hypertension. 3. After completing the above directives, schedule the Veteran for a VA examination by a physician who can adequately address the likely etiology of the Veteran's hypertension, to include whether it is, as likely as not, related to presumed in-service herbicide exposure, with consideration of the Veteran's family history and medical history based on a review of the entire record. After reviewing the entire record, the examiner is asked whether the Veteran's hypertension is, as likely as not (a 50 percent or higher probability) due to injury or disease in service, including, but not limited to, presumed herbicide exposure. A complete rationale for all opinions is requested. The examiner's attention is directed to the August 2016 private opinion of Dr. V.C., summarized above, as well as the Veteran's medical history, risk factors for developing hypertension, and family history. The examiner is also reminded that the Court has made clear that "[a] medical nexus opinion finding a condition is not related to service because the condition is not entitled to presumptive service connection, without clearly considering direct service connection, is inadequate on its face." Stefl v. Nicholson, 21 Vet.App 120, 124 (2007). The examiner is also reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Further, the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between service and the claimed conditions. Likewise, the fact that a presumption has not been established for the particular disorders at issue is not dispositive of the issue of nexus. Consideration must still be given to the exposure. 4. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefit sought is denied, in whole or in part, the Veteran and his representative should be furnished a Supplemental Statement of the Case. 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 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). _________________________________________________ MICHAEL A. PAPPAS 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).