Citation Nr: 18147863 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 09-37 862 DATE: November 6, 2018 REMANDED Entitlement to service connection for hypertension is remanded. (The issues of entitlement to service connection for arthritis, angina, arrhythmia, a skin condition of the legs, and a respiratory condition, as well the claim of entitlement to a total disability rating based upon individual unemployability, will be addressed in a separate decision under a separate docket number). REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1966 to April 1968, with service in the Republic of Vietnam from December 1966 to December 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction over this appeal was subsequently transferred to Oakland, California. The Veteran provided testimony regarding the claim on appeal before the undersigned Veterans Law Judge (VLJ) and a different VLJ (J.A. Markey) in February 2010 and May 2012, respectively. Transcripts from both hearings are associated with the electronic claims file. The law requires that a panel of not less than three members of the Board (VLJs) decide the issues in which hearings concerning the same issues were held by different VLJs but the transcript of the May 2012 hearing shows the Veteran waived his right to have a hearing before a third VLJ assigned to the panel. In January 2013, the Board, represented by a panel of three VLJs, remanded the appeal for further evidentiary development. Thereafter, VLJ J.A. Markey became unavailable to participate in the appeal. As a result, the appeal reverted to a single judge decision, as he has now only presented testimony regarding the claim in this appeal before the undersigned. The appeal was most recently remanded by the Board, represented by the undersigned VLJ, in November 2017. In September 2018, the Board sent the Veteran a hearing clarification letter asking whether he wanted to testify at a new hearing before the Board. Although this letter was sent in error, the Veteran responded to that letter and indicated that he did not wish to appear at another Board hearing. He further indicated that he wanted the Board to consider his appeal based on the evidence of record. The Board finds that issuance of this letter constitutes a harmless error and does not impede appellate review. Nevertheless, additional development is necessary before the Board can adjudicate the issue on the merits. Entitlement to service connection for hypertension. Regrettably, the Board finds it necessary to remand this matter to ensure that all proper development has been accomplished and that all theories of entitlement to service connection have been considered. As an initial matter, the Board notes that the November 2017 Remand included the following instruction: If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. In May 2018, an addendum medical opinion was provided. The VA examiner who rendered that opinion provided supporting rationale that was based on medical literature findings; however, the examiner did not provide the proper citations to that medical literature. As discussed below, the Board is requesting a supplemental medical opinion addressing the various theories of entitlement to service connection. For all medical conclusions reached, the examiner must provide adequate supporting rationale. If that supporting rationale is based on medical literature findings, the examiner must provide the proper citations for all medical treatises, studies, or reports referenced in the medical opinion. Direct/Presumptive Service Connection When he filed his original claim, the Veteran asserted that his hypertension was due to exposure to herbicides while in Vietnam. In a December 2009 statement (VA Form 21-4138), the Veteran indicated that service connection for his hypertension was warranted under 38 C.F.R. § 3.310 “and not due to exposure to [Agent Orange].” Despite his December 2009 statement (VA Form 21-4138), the Veteran continued to proffer additional statements and hearing testimony attributing his hypertension to in-service herbicide exposure. See February 2010 Board hearing transcript; July 2010 and February 2012 statements. In its July 2016 Remand, the Board noted that the Veteran was presumed to have been exposed to herbicides during his service in the Republic of Vietnam during the Vietnam War. See 38 C.F.R. § 3.307(a)(6). Citing the Veteran’s December 2009 statement (VA Form 21-4138), the Board observed that the Veteran was not seeking to establish service connection for hypertension as due to herbicide exposure. Accordingly, the Board did not pursue any further inquiry into that theory of entitlement. The Veteran underwent a VA examination in May 2013. After reviewing the claims file and evaluating the Veteran, the VA examiner provided a medical opinion addressing the etiology of the Veteran’s hypertension. Addendum medical opinions addressing the etiology of the Veteran’s hypertension were obtained in June 2017 and May 2018. These medical opinions of record do not address whether the Veteran’s hypertension is related to his exposure to in-service herbicides. If a veteran was exposed to Agent Orange during active service, presumptive service connection is warranted for certain specified diseases. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(b), 3.309(e). Although hypertension is not a disease that is presumptively related to exposure to herbicides, the Veteran is not precluded from establishing service connection with proof of direct causation between his presumed herbicide exposure and his hypertension. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Board now believes that additional development is necessary before the VA can properly adjudicate the Veteran’s claim. Therefore, the RO must obtain a supplemental medical opinion addressing whether the Veteran’s hypertension is caused by or otherwise etiologically related to his presumed in-service exposure to herbicides. Additionally, the Veteran has claimed that his high blood pressure either began during or was caused by his in-service hospitalization for malaria and/or syphilis at the Philadelphia Naval Hospital from December 1967 to early 1968. See February 2010 Board hearing transcript; July 2010 statement; February 2012 statement. The May 2013 VA examination report noted the Veteran’s hospitalization and treatment for syphilis during service from December 13, 1967 to December 26, 1967. The examiner also noted the Veteran’s subjective report that he was treated for malaria during that hospitalization (this assertion was corroborated by nursing notes clearly documenting that the Veteran was prescribed chloroquine and primaquine to treat malaria). However, the examiner did not provide an opinion addressing whether the Veteran’s hypertension was etiologically related to his in-service treatment for syphilis or malaria. In June 2017, the same VA examiner provided an addendum medical opinion indicating that it was “not likely” that hypertension was attributable to the Veteran’s active service, to include his hospitalization for syphilis or malaria. In support, the examiner explained that medical literature review shows that syphilis and malaria are not risk factors for causation of hypertension. While syphilis and malaria (and the manifestations of these diseases) are not risk factors for hypertension, the Board finds that this rationale does not address whether the in-service treatment (including medications taken while symptomatic) for these diseases impacted the subsequent onset of high blood pressure. The examiner who provides the supplemental medical opinion should address this matter. Finally, it remains unclear when the Veteran’s hypertension had its onset. Private medical records suggest that the Veteran has a longstanding history of hypertension and the Veteran has testified that his high blood pressure began when he was hospitalized for treatment of syphilis and/or malaria from December 13, 1967 to December 26, 1967. However, when the Veteran filed his May 2007 claim seeking entitlement to service connection, he indicated that his hypertension began around 1976. Furthermore, VA treatment record dated in January 2000 indicated that the Veteran had hypertension for 20 years. To ensure that the Veteran’s claim is properly analyzed, the examiner should review all objective medical records and, to the extent possible, identify the first instance in the record where it is factually ascertainable that the Veteran had a diagnosis of hypertension. Secondary Service Connection In July 2017, the Veteran was afforded a VA mental disorders examination to assess the severity of his service-connected anxiety disorder. The VA examiner noted that the Veteran was not currently taking psychotropic medications, he previously was prescribed Celexa (an antidepressant) in 2009 and Clonazepam (a benzodiazepine/anti-anxiety medication). In its November 2017 Remand, the Board instructed the RO to return the claims file to the VA examiner who provided the June 2017 opinion regarding the Veteran’s hypertension disability to obtain an addendum opinion. The Board asked the VA examiner to opine as to whether it is “at least as likely as not” that the Veteran’s hypertension is caused or aggravated (permanently increased in severity) by the Veteran’s service-connected anxiety disorder. In a May 2018 addendum medical opinion, the VA examiner provided medical opinions indicating that the Veteran’s hypertension was “not likely” caused by or permanently aggravated beyond natural progression by his service-connected anxiety disorder or service-connected malaria. In pertinent part, the examiner noted that that medical literature shows that anxiety is not a risk factor for causation of hypertension and that emotional disorders such as anxiety can cause transient elevations in blood pressure but does not cause or permanently aggravate hypertension. The examiner then provided a thorough list of all risk factors and contributing causes of hypertension which included antidepressants and atypical antipsychotics. The examiner did not provide an opinion as to whether the Veteran’s psychiatric medications caused or contributed to the development of hypertension or permanently aggravated the hypertension beyond its natural progression. Under these circumstances, the RO must obtain a supplemental medical opinion addressing whether any of the Veteran’s psychiatric medications caused or permanently aggravated his hypertension. This matter is REMANDED for the following actions: 1. Contact the Veteran and ask him to identify whether there are any outstanding VA or private medical records reflecting treatment for his hypertension. If such records are identified, then obtain those records and associate them with the electronic claims file. To expedite this action, the Veteran is encouraged to submit any additional VA or private medical records in his possession. 2. Obtain a supplemental medical opinion from the VA examiner who provided the June 2013, June 2017, and May 2018 medical opinions regarding the Veteran’s hypertension disability. The electronic claims file and a copy of this Remand must be made available to the examiner and the examiner should note that the claims folder and the Remand have been reviewed. If this particular VA examiner is not available, the electronic claims file should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the supplemental opinion. Following a review of the record, the examiner is asked to provide the following opinions: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension is caused by or otherwise etiologically related to his presumed in-service exposure to herbicides. b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension is caused by or otherwise etiologically related to his in-service treatment (including medications taken while symptomatic) for syphilis and malaria. c) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension (1) began during active service, (2) manifested to a compensable degree within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. In providing this opinion, the examiner should review all objective medical records and, to the extent possible, identify the first instance in the record where it is factually ascertainable that the Veteran had a diagnosis of hypertension. d) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension is caused or aggravated (permanently increased in severity) by his service-connected anxiety disorder, to include the antidepressant/ antipsychotic medications taken to treat this disorder. All medical opinions should be supported by adequate rationale and discussion of all relevant facts in this case. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. L. Marcum, Counsel