Citation Nr: 18155528 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 15-46 728 DATE: December 4, 2018 REMANDED Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus, type II, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1969 through March 1971, to include verified service in the Republic of Vietnam from March 1970 to March 1971. These matters are before the Board of Veterans’ Appeals (Board) on appeal of a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran initially requested a hearing by video conference. However, in March 2016, the Veteran indicated that he wished to withdraw his hearing request. Under 38 C.F.R. § 20.704(e), a request for hearing may be withdrawn by an appellant at any time before the hearing. Therefore, the Board finds that the hearing request has been withdrawn, and will proceed with appellate review. Although the Board regrets the additional delay, a remand is required for further development and adjudicative action. 1. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II, and as due to herbicide exposure, is remanded. The Veteran is claiming service connection for hypertension, to include as secondary to his service-connected diabetes mellitus, type II. Secondary service connection may be granted for a disease or injury which resulted from a service-connected disability or was aggravated thereby. 38 C.F.R. § 3.310. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Further, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will also be service connected. However, a medical opinion as to secondary service connection is inadequate for the Board’s decision as to aggravation if the issue of aggravation is not addressed by the examiner. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). An examiner’s determination that the disease or injury at issue is not “related to” the service-connected condition is not sufficient to address the aggravation issue. Id. In June 2012, a VA examiner reviewed the Veteran’s claims file and opined that his hypertension is not likely to be related to his diabetes because he does not have diabetic renal disease and he was diagnosed with hypertension at the same time that he was diagnosed with diabetes. However, the Board cannot make a fully-informed decision on the issue of the Veteran’s hypertension because no VA examiner has opined whether it was aggravated by his service-connected diabetes. Therefore, the claim must be remanded in order to obtain an opinion regarding aggravation. Additionally, the Board must construe pleadings liberally and consider theories of entitlement that are independently raised by the record, even if they were not specifically asserted by the Veteran. See Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); 38 C.F.R. § 20.202. As noted above, the Veteran served in Vietnam from March 1970 to March 1971 and is presumed to have been exposed to herbicide agents, such as Agent Orange, during that time. 38 C.F.R. § 3.307(a)(6)(iii). Notably, the National Academy of Sciences (NAS) recently found that there was “limited or suggestive evidence of an association” between hypertension and Agent Orange exposure based on a statistical study. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20308 (April 11, 2014); see also 38 U.S.C. 1116 (b). The category “limited or suggestive evidence of an association” means 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.” Id. NAS’s findings as to hypertension are sufficient to satisfy the “low threshold” of whether a current disability may be related to service to warrant an examination or opinion under McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (holding, in pertinent part, that an examination or opinion is warranted when there is an indication that a current disability may be related to an in-service event). Importantly, although hypertension is not one of the diseases listed where the presumptive of service connection applies for veterans who have been exposed to herbicide agents, the claim may still be established with proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (observing that the “availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange”). Consequently, this claim must be remanded for a VA opinion to address the likelihood that the Veteran’s hypertension may be related to herbicide agent exposure. The Board finds that the evidence in this case is sufficient to indicate that the Veteran’s hypertension may be related to the presumed in-service herbicide agent exposure or may be a complication of his service-connected diabetes, type II, but is not sufficient to decide the case. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus, type II, is remanded. The Veteran is claiming service connection for erectile dysfunction, to include as secondary to his service-connected diabetes mellitus, type II. The June 2012 VA examiner opined that his erectile dysfunction is not likely to be related to his diabetes because his erectile dysfunction improved with Androgel, proving an androgen deficiency etiology. As stated above, “related to” is not sufficient to address the aggravation prong of secondary service connection. In this case, the Board cannot make a fully-informed decision on the issue of the Veteran’s erectile dysfunction because no VA examiner has opined whether it was aggravated by his diabetes. Further, the RO failed to obtain, or even request, the medical records from Dr. M. Patel, the primary care provider referred to in the medical records received on 9/9/2011, who treated the Veteran for hypertension and erectile dysfunction. Therefore, the case must be remanded in order to obtain a complete rationale for the medical opinion relied upon by the regional office. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. M. Patel, the primary care provider referred to in the medical records received on 9/9/2011 who treated the Veteran for hypertension and erectile dysfunction; and any other outstanding, relevant private treatment records. Make two requests for any records so identified, unless it is clear after the first request that a second request would be futile. If any records cannot be obtained or if the Veteran does not provide authorization for release of any private treatment records previously identified, then send the Veteran a letter explaining why the records could not be obtained. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s hypertension is at least as likely as not related to his presumed in-service herbicide agent exposure (a) proximately due to his service-connected disability or (b) aggravated beyond its natural progression by his service-connected disability. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s hypertension is at least as likely as not related to his service-connected diabetes mellitus (a) proximately due to his service-connected disability or (b) aggravated beyond its natural progression by his service-connected disability. 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s erectile dysfunction is at least as likely as not related to his service-connected diabetes mellitus (a) proximately due to his service-connected disability or (b) aggravated beyond its natural progression by his service-connected disability. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.Smith, Law Clerk