Citation Nr: 1647836 Decision Date: 12/22/16 Archive Date: 01/06/17 DOCKET NO. 14-04 123 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for hypertension, to include as due to herbicide exposure and as secondary to his service-connected diabetes mellitus. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. ATTORNEY FOR THE BOARD Jason George, Associate Counsel INTRODUCTION The Veteran had active duty service from February 1968 to February 1970, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2012 and May 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The issue of entitlement to service connection for a back disorder was remanded in March 2016 along with the claims currently on appeal. Following development conducted pursuant to the Board's March 2016 remand, the AOJ granted service connection for lumbar strain in a September 2016 rating decision. As such is a full grant of benefits with regard to such issue, it is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). When previously before the Board, this case was remanded in part to obtain a medical opinion as to whether the Veteran's hypertension was related to service. In the medical opinion obtained in response to such directive, the VA examiner also addressed whether the Veteran's hypertension was related to or aggravated by his service-connected diabetes mellitus. As such, service connection for hypertension as secondary to diabetes mellitus has been reasonably raised by the record, and the Board has recharacterized the issue as entitlement to service connection for hypertension, to include as due to herbicide exposure and as secondary to his service-connected diabetes mellitus. See Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000); Robinson v. Peake, 21 Vet. App. 545, at 552 (characterizing Schroeder as holding that "the duty to assist applies to the entire claim, which might require assistance in developing more than one theory in support of that claim"). In addition, in March 2016, the Board noted that the issue of entitlement to service connection for a nervous disorder other than posttraumatic stress disorder was raised by the Veteran in a June 2012 informal claim. This issue still has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems, and has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims to ensure he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). In addition, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Pursuant to the March 2016 remand, the AOJ afford the Veteran a VA examination in August 2016. At such time, the examiner addressed whether the Veteran's hypertension was related to service, to include in-service herbicide exposure, or secondary to his service-connected diabetes mellitus. As noted in the Introduction, such opinion was the first time the theory regarding secondary service connection was raised. As such, the Veteran has not yet received Veterans Claims Assistance Act of 2000 (VCAA) notice as to the information necessary to establish service connection on a secondary basis. Therefore, such should be accomplished on remand. As stated above, in the March 2016 remand, the Board asked the AOJ to obtain an opinion as to whether the Veteran's hypertension is related to his presumed exposure to herbicides while serving in Vietnam. Specifically, the Board noted that in 2006 the National Academy of Sciences (NAS) placed hypertension in the "Limited or Suggestive Evidence" category of conditions related to herbicide exposure. Update 2012 notes that NAS has defined this category of limited or suggestive evidence to mean that the "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." See 79 Fed. Reg. 20,308 (Apr. 11, 2014). In August 2016, the VA examiner confirmed the Veteran's diagnosis of hypertension and opined that such was less likely than not related to service. In doing so, the examiner addressed whether the Veteran's hypertension onset during service or within a year after service, whether the Veteran's exposure to herbicides in Vietnam caused his hypertension, and whether the Veteran's hypertension was related to or aggravated beyond its natural course by his service-connected diabetes mellitus. However, in rendering an opinion as to whether the Veteran's exposure to herbicides caused his hypertension, the examiner did not consider the NAS Updates or opine as to whether herbicide exposure caused this specific Veteran's hypertension. Instead, the examiner stated simply that "[a]ccording to medical literature, hypertension has not been associated with exposure to herbicides (including Agent Orange) in Vietnam." On remand, a VA examiner should consider both the NAS's 2012 reclassification of hypertension and this specific Veteran's history of hypertension in rendering an opinion as to whether such is related to his herbicide exposure in Vietnam. The examiner's opinion as to secondary service connection is adequate for the purpose of adjudicating the claim. However, as stated above, the AOJ will be directed to provide the Veteran with VCAA notice as to secondary service connection on remand. Therefore, if the Veteran submits any additional evidence or argument as to such aspect of the claim, the AOJ should obtain an addendum opinion addressing such newly received evidence. With regard to the Veteran's TDIU claim, the Board directed the AOJ obtain an opinion from a VA examiner that provides a full description of the effects of the Veteran's service-connected disabilities on his ordinary activity, to include his employability. In so requesting, the Board noted an October 2014 opinion from Dr. C.Q., a private physician, that the Veteran was 100 percent disabled and unable to work, and a November 2012 VA opinion that the Veteran was able to obtain, perform, and secure a substantial gainful occupation requiring a light, sedentary work based on his service-connected disabilities. The Board found both of these opinions insufficient to adjudicate the claim because no rationale was provided for either opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). On remand, in August 2016, the Veteran was afforded examinations for diabetes mellitus, male reproductive system, kidney conditions (nephrology), diabetic sensory-motor peripheral neuropathy, and hypertension. In each, the examiner stated that the Veteran's disabilities did not affect his ability to work. Again, no explanation or rationale was given for the conclusion. Id. In addition, the Board notes that in September 2016 the Veteran's claim for service connected for lumbar strain was granted. Given the timing of the examination and opinion, the August 2016 examiner did not considered the effects of this disability on the Veteran's ability to work. Therefore, on remand, an examiner should consider the effect of all the Veteran's disabilities, to include his lumbar strain, on his ordinary activity, to include his ability to work. 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Finally, the Veteran should be asked to furnish, or to furnish an authorization to enable VA to obtain, any additional private treatment records from providers who treated him for his claimed disabilities. Additionally, given the time that will pass during the processing of this remand, updated VA treatment records should be associated with the claims file. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The Veteran should be provided with proper VCAA notice regarding the evidence and information necessary to substantiate a claim of entitlement to service connection for hypertension, as secondary to service-connected diabetes mellitus. 2. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include updated VA treatment records from the San Juan VA Medical Center dated from May 2016 to the present, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After obtaining any outstanding records, arrange for the record to be returned to the examiner who conducted the August 2016 VA hypertension examination (or a suitable substitute if such examiner is unavailable) for the purpose of preparing an addendum opinion regarding the etiology of the Veteran's hypertension and providing a full description of the effects, to include all associated limitations, of the Veteran's service-connected disabilities. The need for an additional in-person examination should be determined by the examiner. The record, to include a copy of this remand, must be made available to and be reviewed by the examiner. The examiner is asked to furnish an opinion with respect to the following: (A) Is it at least as likely as not (50 percent probability or more) that the Veteran's hypertension had its onset in service, had its onset in the year immediately following service, or is otherwise the result of an incident in service, to include exposure to herbicides while stationed in Vietnam. In offering such opinion, the examiner should consider NAS's Update 2012 addressing the relationship between such disease and herbicide exposure. The examiner should explain the reasons for the conclusions reached. While the examiner is free to cite to studies by the National Institute of Health or any medical treatises in rendering the opinion, the examiner's rationale cannot rely solely on the fact that VA has not included hypertension in the list of presumptive conditions. In other words, the Board needs an opinion as to the likelihood that this specific Veteran's hypertension, without regard to the conditions VA recognizes as being due to herbicides, is nevertheless at least as likely as not related to his exposure to herbicides in Vietnam. (B) If, and only if, the Veteran has submitted any additional evidence or argument regarding the secondary theory of entitlement, the examiner should determine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's hypertension is caused or aggravated by his service-connected diabetes mellitus. For any aggravation found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. (C) The examiner should provide a full description of the effects, to include all associated limitations, of the Veteran's service-connected disabilities, currently consisting of diabetes mellitus with erectile dysfunction, diabetic nephropathy, diabetic peripheral neuropathy of the bilateral upper and lower extremities, and lumber strain, on his ordinary activities, to include his employability, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by clear rationale consistent with the evidence of record. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 2014). _________________________________________________ A. JAEGER 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) (2016).