Citation Nr: 1803466 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 12-08 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hypertension, to include as secondary to herbicide agent exposure and/or service-connected diabetes mellitus type II (DMII) and/or ischemic heart disease (IHD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. E. Metzner, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Special Processing Unit (Tiger Team) at the Regional Office (RO) in Cleveland, Ohio. Jurisdiction currently resides with the RO in St. Petersburg, Florida. In April 2017, the Board denied the Veteran's claim for service connection for hypertension. Subsequently, the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In October 2017, the Court granted a Joint Motion for Remand (JMR), vacated the Board's April 2017 decision, and remanded the matter for additional proceedings consistent with the JMR. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In the October 2017 JMR, the parties agreed that the Board erred in relying on the January 2015 VA examination, which contained facially contradictory findings. In pertinent part, the VA examiner indicated that the Veteran's hypertension clearly and unmistakably existed prior to service and, at the same time, indicated that the Veteran was diagnosed with hypertension 30 years after service. Therefore, consistent with the JMR, the Board finds that remand is warranted for a new VA examination to provide clarification as to the diagnosis date for hypertension, including whether the hypertension clearly and unmistakable existed prior to service. Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding records of pertinent medical treatment from VA or private health care providers. With the Veteran's assistance, obtain copies of any pertinent records and add them to the claims file. 2. Following the above development, arrange for the Veteran to be afforded a VA examination by an appropriate examiner to determine the nature and etiology of his hypertension. The Veteran's claims file (to include this remand) must be reviewed by the examiner in conjunction with the examination. Upon examination and interview of the Veteran, and review of pertinent medical history, the examiner should provide opinions responding to the following: a) The examiner must identify when the Veteran was first diagnosed with hypertension. b) If the examiner finds that the Veteran's was diagnosed with hypertension prior to active service, the examiner must state whether there is clear and unmistakable (undebatable) evidence that the Veteran's hypertension preexisted his active service. c) If the examiner finds that hypertension clearly and unmistakably preexisted the Veteran's active service, the examiner must state whether there is clear and unmistakable (undebatable) evidence that hypertension was not aggravated beyond its natural progression by his active service. d) If the examiner determines that the Veteran's hypertension did not clearly and unmistakably exist prior to service, or was not clearly and unmistakably aggravated by his active duty service, the examiner must determine whether it is at least as likely as not (50 percent or greater degree of probability) that hypertension began during active duty service, was caused by service, or is otherwise related to active duty service, to include exposure to herbicide agents. The examiner is advised that the Board is cognizant that there is no VA presumption of service connection for hypertension as due to herbicide agent exposure. The Agent Orange Updates speak to associations between exposure to chemicals and health outcomes in human populations, and not to the likelihood that any individual's health problem is associated with or caused by the herbicides in question. Thus, the question here is what is the likelihood that this Veteran's hypertension is related to his herbicide agents exposure given his medical history, family history, risk factors, etc. e) If the examiner determines that the Veteran's hypertension did not clearly and unmistakably exist prior to service, or was not clearly and unmistakably aggravated by his active duty service, the examiner also opine as to whether it is at least as likely as not (50 percent or greater degree of probability) that hypertension was caused or aggravated by service-connected DMII and/or IHD. In rendering the above opinions, the examiner must discuss specifically the Veteran's elevated blood pressure readings on enlistment and separation. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing all indicated development, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and provided with the appropriate opportunity to respond. Thereafter, the appeal must be returned to the Board for appellate review. 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). _________________________________________________ A. ISHIZAWAR 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) (2017).