Citation Nr: 18156214 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 12-16 891 DATE: December 7, 2018 REMANDED Entitlement to service connection for hypertension, to include as secondary to diabetes, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1965 to November 1970 and from January 1971 to December 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In December 2012, the Veteran provided testimony before the undersigned Veterans Law Judge during a videoconference hearing. A copy of the hearing transcript has been associated with the electronic claims file. This matter has been before the Board on numerous occasions. Regrettably, another remand is necessary for evidentiary development, as well as to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s appeal. A. VA medical opinion In May 2017, the Board remanded this matter, in part, for a VA medical opinion to assess whether an etiological relationship existed between the Veteran’s current diagnosis of hypertension and his presumed in-service exposure to herbicide agents, including Agent Orange. To date, hypertension is not an enumerated disability entitled to presumptive service connection based on exposure to herbicide agents under 38 C.F.R. § 3.309(e). Note 2 of 38 C.F.R. § 3.309(e) specifically states that the term ischemic heart disease does not include hypertension. In October 2017, a VA examiner reviewed the electronic appellate record and declined to link the Veteran’s current hypertension to his in-service exposure to herbicide agents. In doing so, the examiner based her decision on the 2012 updates to the National Academy of Sciences’ (NAS) report, “Veterans and Agent Orange,” which stated there was “limited or suggestive evidence of an association between the chemicals of interest in Agent Orange and hypertension.” After reviewing this examination report, the Board finds that it does not provide an adequate basis on which to determine entitlement to the benefits sought. Specifically, it was found that hypertension is not related to herbicide exposure solely on the basis that it is not listed as being presumptively caused by this exposure. "To permit the denial of service connection for a disease on the basis that it is not likely there is any nexus to service solely because the statistical analysis does not support presumptive service connection, would, in effect, permit the denial of direct service connection simply because there is no presumptive service connection." Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009). CAVC has indicated that "[t]he 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." Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Moreover, since the examiner’s opinion, the NAS has released the 2018 update to the report “Veterans and Agent Orange” wherein hypertension was upgraded from its previous classification in the category of “limited or suggestive” evidence of an association to herbicide agents, to the category of “sufficient” evidence of an association to herbicide agents. According to the NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide agent exposure. The Board declines to take judicial notice of the findings and conclusions found in the 2018 update to the NAS report, as this literature does not include facts of universal notoriety that are not subject to reasonable dispute. Monzingo v. Shinseki, 22 Vet. App. 97, 103 (2012). However, the Board will take judicial notice that the 2018 update to the NAS report “Veteran and Agent Orange” exists, and finds than an addendum medical opinion is warranted for an appropriate VA examiner to consider this report in relationship to the Veteran’s medical history. B. Service treatment records In February 1992, the Veteran filed his first claims seeking compensation for service-connected disabilities. During development of these claims, the RO had difficulty obtaining a complete copy of the Veteran’s original service treatment records and solicited the Veteran’s assistance in obtaining these missing records. In March 1993, the Veteran borrowed a complete copy of his service treatment records from the Air Force base in Little Rock, Arkansas; hand delivered a copy to VA personnel; and returned the original records to the Air Force. The March 1993, November 1993, and July 1994 rating decisions reflect that the RO considered complete copies of the Veteran’s service treatment records when adjudicating prior claims. Sometime after July 1994, the Veteran’s complete service treatment records became unassociated with his VA claims file and remain missing. In August 1997, a claim of entitlement to service connection for an eye disability came before the Board for appellate consideration. At that time, the Board remanded the matter, in part, for the RO to obtain a complete copy of the Veteran’s service treatment records. The Veteran mailed in correspondence explaining that he obtained his service treatment records in 1993, provided a copy to VA at that time, and that the records were no longer in his possession. In April 1998, VA contacted the Air Force base in Little Rock, Arkansas to request the missing records. Personnel from the Air Force base indicated that that the records were not available at their facility, and were likely retired to St. Louis, Missouri – presumably referring to the National Personnel Records Center (NPRC). In April 1998, the RO filed a request for information with NPRC seeking the Veteran’s complete service treatment records. The NPRC provided a negative response and indicated that the records had been previously forwarded to VA in January 1992. This service connection claim was adjudicated in a final March 1999 Board decision, prior to the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), which placed affirmative duties on VA to assist veterans in the development of their claims, including assistance in obtaining service treatment records. To date, the electronic appellate record only contains limited service treatment records dated April 1975 to June 1988, as well as service dental records. Given that the claim is being remanded for an addendum medical opinion, the RO is requested to make a final attempt to obtain the Veteran’s service treatment records. The matter is REMANDED for the following action: 1. Request a complete copy of the Veteran’s service treatment records through official channels. If the records do not exist or further attempts to obtain the records would be futile, make a formal finding of unavailability, and notify the Veteran. 2. THEN, obtain an addendum medical opinion from an appropriate VA medical examiner. Following a complete review of the Veteran’s electronic appellate record, the examiner is requested to opine on the following: Is it at least as likely as not (50 percent or better probability) that the Veteran’s hypertension was caused by his service, to include his exposure to herbicide agents? The examiner is requested to consider and discuss the National Academy of Sciences’ report, “Veterans and Agent Orange,” 2018 update, which concluded that there was “sufficient” evidence of an association between the chemicals of interest in herbicide agents and hypertension. The examiner must provide a complete rationale for any opinion based on the examiner’s medical expertise, medical principles, and the evidence in the appellate record. However, the examiner is advised that simply stating hypertension is not on the list of diseases presumptively associated with Agent Orange exposure is not sufficient rationale for a negative opinion. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Galante, Associate Counsel