Citation Nr: 1746980 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 12-30 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected coronary artery disease. 2. Entitlement to service connection for dementia (claimed as memory loss). 3. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran had active service from June 1967 to June 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In a March 2015 decision, the Board granted service connection for posttraumatic stress disorder (PTSD) and an essential tremor of the bilateral upper extremities. The issues of entitlement to service connection for hypertension and dementia and the issue of entitlement to SMC based on the need for the regular aid and attendance of another person were remanded for additional action. While the matter was in remand status, in an August 2015 rating decision, the RO granted special monthly compensation based on housebound criteria from August 16, 2010. However, as special monthly compensation based on aid and attendance is a greater benefit than special monthly compensation at the housebound rate, this issue is still before the Board. Cf. 38 U.S.C.A. § 1114(l), 38 U.S.C.A. § 1114(s); see also Adjudication Procedures Manual M21-1, Part II.2.B.1.g (September 19, 2017) (A grant of SMC based on aid and attendance renders the issue of housebound moot for the same type of benefit (either SMC or SMP) since aid and attendance is the greater benefit). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In March 2015, the Board remanded the issue of entitlement to service connection for hypertension, to include as secondary to service-connected coronary artery disease. The Board found that remand was necessary in order to conduct proper development on the claim, to include a VA medical examination. Specifically, the Board asked the examiner to provide an opinion as to whether it was at least as likely as not that the Veteran's hypertension was related to his service or, in the alternative, whether his service-connected coronary artery disease aggravated his hypertension. The Veteran was afforded a VA examination dated in June 2015. The Veteran was diagnosed with hypertension. The examiner noted that Veterans service treatment records did not document any elevations in blood pressure and that his post-service medical records documented a diagnosis of hypertension with treatment with metoprolol in 2007. The examiner concluded that the Veteran's hypertension was less likely than not (less than 50% probability) incurred in or caused by service or any incident therein. The examiner's rationale was that the Veteran did not have any indication of hypertension while on active duty. The Veteran's service personnel records, however, confirm that he served in the Republic of Vietnam during the Vietnam era. Thus, he is presumed to have been exposed to herbicide agents during service. VA regulations provide that, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Although the enumerated diseases do not include hypertension, service connection may be established with evidence of actual causation. 38 C.F.R. § 3.309(e); Stefl v. Nicholson, 21 Vet. App. 120 (2007). On August 10, 2012, VA published in the Federal Register, Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010. See Notice, 77 Fed. Reg. 47924-47928 (2012). In that Notice, VA discussed National Academy of Sciences' (NAS) findings concerning hypertension and its possible relationship to herbicide exposure. VA noted that NAS had placed hypertension in the "Limited or Suggestive Evidence of Association" category, although VA ultimately concluded that the available evidence from the NAS was not sufficient to establish a new presumption of service connection for hypertension in veterans exposed to herbicides. In the May 2015 examination report, the examiner did not comment on the possibility that the Veteran's hypertension may be related to his presumed exposure to Agent Orange. In addition, she did not offer an opinion regarding whether the Veteran hypertension was secondary to or aggravated by his service-connected coronary artery disease. As such, this matter must be remanded. In this regard, the Board notes that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the Board finds that the Veteran's remaining claims on appeal are inextricably intertwined with his claim of entitlement to service connection for hypertension, and therefore must also be remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together). Specifically, the Board notes that the medical evidence of record clearly indicates that the Veteran's vascular dementia is etiologically related to his non-service-connected CVA. As set forth in its March 2015 decision, as there may be a link between hypertension and cerebral vascular accidents, if the Veteran is granted entitlement to service connection for hypertension, service connection may be warranted for his April 2007 CVA and the resulting vascular dementia. Further, with regard to the Veteran's appeal for entitlement to SMC due to the need of regular aid and attendance, the Board notes that this claim cannot be fully decided until all the service connection claims on appeal are either granted or denied. In this regard, the Board notes that the Veteran was afforded a VA examination dated in June 2015 in connection with his claim. The examination report indicated that Veteran is not able to perform self-feeding, dressing and undressing, bathing, grooming, or toileting. He has vascular dementia and requires 24 hour assistance from his wife. The examiner noted that in 2007, the Veteran incurred a significant CVA that left him with vascular dementia. Given these findings, a determination is necessary with respect to the claim of service connection for dementia. Accordingly, the case is REMANDED for the following action: 1. Request a medical opinion from a suitably qualified VA clinician regarding the etiology of the Veteran hypertension. After reviewing the record, the examiner should provide an opinion, with supporting rationale, as to the following: Is it at least as likely as not (a 50 percent or better probability) that the Veteran's current hypertension was incurred in service or otherwise causally related to service or any incident therein, to include presumed exposure to Agent Orange. If not, is it at least as likely as not that the Veteran's service-connected coronary artery disease caused his hypertension? If not, is it at least as likely as not that the Veteran's service-connected coronary artery disease aggravated his hypertension. In this regard, the term "aggravation" means a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. A complete rationale for any opinions expressed must be provided. 2. After completion of the foregoing, conduct any additional development deemed warranted by the results of the hypertension examination including, but not limited to, a new examination for the claim of entitlement to service connection for dementia. 3. Readjudicate the claims. If any decision remains adverse to the Veteran, issue a supplemental statement of the case, allow the appropriate time for response, and then return the case to the Board. The Veteran 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). _________________________________________________ K. CONNER 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).