Citation Nr: 1802924 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 12-01 680 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for hypertension, to include as due to herbicide exposure or as secondary to service-connected diabetes mellitus, type II. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran served on active duty from June 1963 to June 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. This case was previously remanded by the Board in June 2015 and September 2016. The case has been returned to the Board for review. In March 2015, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, further development is required prior to adjudication of the Veteran's claim. The Board previously remanded the Veteran's claim in September 2016 for additional development. Specifically, the Board directed the RO to contact the Veteran and obtain authorization for release of all records related to his treatment for hypertension. The Board further directed the RO to provide the Veteran with a VA examination to assess the nature and etiology of his hypertension. In particular, the VA examiner was directed to offer an opinion as to whether it is at least as likely as not that the Veteran's hypertension is causally or etiologically related to his active service, to include his presumed herbicide exposure or whether the Veteran's hypertension is caused or aggravated by his service-connected diabetes mellitus, type II. In September 2016, the RO sent a letter to the Veteran requesting that he complete and return the enclosed VA Form 21-4142, Authorization to Disclose Information to the Department of Veteran Affairs and VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs. In October 2016 the Veteran returned to the RO a signed VA Form 21-4142 and VA Form 21-4142a. However, there is no evidence in the record that the RO attempted to obtain the Veteran's private treatment records identified on the VA Form 21-4142a. Compliance with Board remand directives is not discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, because the RO did not attempt to obtain the Veteran's private treatment records as directed by the September 2016 Board remand, the Board must remand the matter so that the remand directives may be substantially completed. Pursuant to the September 2016 Board remand the Veteran was provided a VA examination in October 2016. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The VA examiner opined that it is less likely as not that the Veteran's hypertension began in service, was caused by service, or is otherwise related to service, to include the Veteran's presumed herbicide exposure. The VA examiner further opined that it is less likely as not that the Veteran's hypertension was caused or aggravated by his service-connected diabetes mellitus, type II. As rationale, the VA examiner stated that the Veteran was diagnosed with hypertension before he was diagnosed with diabetes and that the Veteran has shown normal kidney function and therefore diabetes cannot be the cause of his hypertension. The Board finds that the October 2016 VA examiner's opinion is inadequate for adjudication purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). The October 2016 VA examiner merely stated that the Veteran's hypertension is not related to his active service, to include his presumed herbicide exposure; the VA examiner did not provide a rationale for the opinion provided. Further, the examiner did not have the benefit of review of any private medical records that may be obtained by the RO prior to rendering the opinion proffered. The medical evidence of record demonstrates that the Veteran has a current diagnosis of hypertension. In addition, the Veteran's service personnel records indicate that the Veteran had in-country service in the Republic of Vietnam during the Vietnam era. His exposure to herbicide agents, such as Agent Orange, is therefore conceded. See 38 C.F.R. § 3.307 (a) (6) (iii) (2017). Although presumptive service connection cannot be granted for the Veteran's hypertension, in addition to the presumptive regulations, a Veteran may establish service connection based on exposure to herbicide agents with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to herbicides does not preclude direct service connection for other conditions based on exposure to herbicides); Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). The Board finds that an opinion should be sought regarding a direct link between the Veteran's hypertension and his conceded exposure to herbicides in Vietnam. Additionally, in July 2015, VA received a letter from the Veteran's private physician stating that the Veteran's service-connected diabetes has contributed to his hypertension. On remand the VA examiner should address the July 2015 private physician letter. Furthermore, as stated above, the October 2016 VA examiner opined that the Veteran's hypertension was less likely as not aggravated by his service-connected diabetes mellitus, type II. However, the VA examiner did not give a rationale for the opinion provided. In this regard, the Board notes that an opinion to the effect that one disability "is not caused by or the result of" another disability does not answer the question of aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). As the October 2016 VA examiner did not provide a rationale for the opinion provided, the issue must be remanded for a further VA opinion. Barr, 21 Vet. App. 312. Finally, the October 2016 VA examiner determined, in part, that the Veteran's hypertension was not caused by his service-connected diabetes mellitus, type II because the Veteran was diagnosed with hypertension before he was diagnosed with diabetes. In that regard, the Board observes that a recent opinion was issued by the United States Court of Appeals for Veterans Claims (Court). In Frost v. Shulkin, ___ Vet. App. ___, No. 15-3102, Lexis 1747 (November 30, 2017), the Court held that "for a veteran to be service connected on a secondary basis under a causation theory, the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred." As such, on remand the VA examiner must provide an addendum opinion as to whether the Veteran's hypertension is caused by his service-connected diabetes mellitus, type II. Accordingly, the case is REMANDED for the following action: 1. Undertake all appropriate efforts to attempt to obtain the private treatment records identified in the signed October 2016 VA Form 21-4142 and VA Form 21-4142a. All development efforts with respect to this directive should be associated with the claims file. If the identified records cannot be obtained, the RO must notify the Veteran of (1) the identity of the records sought, (2) the steps taken to obtain them, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the records are later obtained, the claim may be readjudicated. 2. Following completion of the above, forward the record and a copy of this remand to the examiner who conducted the October 2016 VA examination, or if the examiner is unavailable, another suitably qualified examiner, for completion of an addendum opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should express an opinion as to: a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension had its onset in active service or is otherwise causally or etiologically related to his active service. The opinion must specifically address whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is due to in-service herbicide agent exposure. b) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is proximately due to or the result of the Veteran's service-connected disabilities, specifically to include his service-connected diabetes mellitus, type II. The VA examiner must address the July 2015 private treatment record stating that the Veteran's service-connected diabetes mellitus, type II contributed to his hypertension. In addition, pursuant to Frost, the VA examiner must note that the primary disability need not be diagnosed at the time the secondary condition is incurred. c) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was aggravated by his service connected disabilities, specifically to include his service-connected diabetes mellitus, type II. Rationale must be provided for each opinion proffered. 3. After completion of the above, review the expanded record, including the evidence entered since the most recent supplemental statement of the case, and determine whether entitlement to service connection for hypertension may be granted. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).