Citation Nr: 18156581 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 11-30 948 DATE: December 11, 2018 REMANDED Entitlement to service connection for hypertension, including as secondary to service-connected diabetes mellitus and exposure to herbicides. REASONS FOR REMAND The Veteran served on active duty from September 1966 to September 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. By way of background, the claim of entitlement to service connection for hypertension was originally denied in an April 2009 claim before the RO, because it could not be shown that there was evidence showing treatment or a diagnosis during active duty military service, nor was there any evidence showing a diagnosis of hypertension within one year following discharge from active duty military service, or showing a relationship to the Veteran’s service-connected diabetes mellitus. The RO then decided to reopen the case upon receiving new evidence, yet this claim remained denied in a September 2010 decision. This case was appealed to the Board, who found that new and material evidence had been received to reopen the claim for entitlement to service-connection for hypertension in June 2014. A decision was not reached however, and the Board remanded this issue for additional development through a more adequate medical opinion. After receiving that VA medical examination in July 2014, the Board evaluated the evidence and again denied the claim. This issue was then appealed from the Board to the Court of Appeals for Veteran’s Claims (The Court), which held that the July 2014 VA medical examination that the Board relied on was inadequate. The Court held specifically that the July 2014 examination was inadequate as to the question of causation and aggravation, since while the examination provided a medical explanation as to whether or not the Veteran’s hypertension was causally related to his service-connected diabetes, it did not provide an adequate rational for whether or not the Veteran’s hypertension was aggravated by his service-connected diabetes. The Court remanded the issue to the Board for a consistent opinion. Entitlement to service connection for hypertension, including as secondary to service-connected diabetes mellitus and exposure to herbicides. The Veteran is claiming entitlement to service-connection for hypertension, to include as secondary to his service-connected diabetes mellitus and exposure to herbicides. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). To meet the criteria for secondary service connection, a Veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service connected disability. 38 C.F.R. § 3.310; Allen v. Brown 7 Vet. App. 439 (1995). VA’s duty to assist in a Veteran’s claim includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. See 38 C.F.R. § 3.159 (c)(4). A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 8186 (2006). See also 38 U.S.C. § 5103A (d)(2) (2012); 38 C.F.R. § 3.159 (c)(4)(i). When VA provides a medical examination, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311-312 (2007), see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (“The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusions submitted in the medical opinion”). The Court has emphasized that a specific inquiry directly addressing aggravation, separate from whether a service-connected disability caused the disability at issue, is necessary when an examiner addresses secondary service connection. El-Amin v. Shinseki, 26 Vet. App 136, 140-41 (2013). The Board may take judicial notice of “facts of universal notoriety that are not subject to reasonable dispute.” Monzingo v. Shinseki, 26 Vet. App. 97, 103-04 (2012). Monzingo, offers support for the position that the Board may take judicial notice of the existence of the recent update concerning an association between hypertension and herbicide exposure, and ask that a VA examiner consider this report in providing a medical nexus opinion. Specifically, as noted in Veterans and Agent Orange: Update 11 (2018), the National Academies of Sciences, Engineering and Medicine (NAS) found sufficient evidence of an association for hypertension and exposure to Agent Orange and other herbicides used during the Vietnam War. As noted above, the Veteran received a VA medical examination in July 2014. That examination however, was inadequate as to the question of aggravation. While the examination provided a medical explanation as to whether or not the Veteran’s hypertension was causally related to his service-connected diabetes, it did not provide an adequate rational for whether or not the Veteran’s hypertension was aggravated by his service-connected diabetes. Aggravation must be addressed for the VA medical examination to be deemed adequate. Because the Veteran’s entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. A VA medical examination and medical opinion are required by VA’s duty to assist the Veteran in developing evidence to substantiate his claim to service connection. The matter is REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any further private or VA medical records identified and authorized for release by the Veteran. Schedule the Veteran for a VA medical examination with an appropriate physician in regard to entitlement to service connection for his hypertension. The claims file should be made available for the clinician to review, and the report should reflect that such review was accomplished. The clinician should consider the entire claims file. The examiner is asked to offer opinions as to the following: (a) whether it is at least as likely as not (50 percent or greater) that the Veteran’s hypertension is causally related to, or aggravated by, his military service. Any opinion should include a complete rationale. (b) If not, opine whether it is at least as likely as not (50 percent or greater) that the Veteran’s current diagnosis of hypertension is causally related to, or aggravated by, his service-connected diabetes mellitus. Again, any opinion should include a complete rationale. (c) If not, opine whether it is at least as likely as not (50 percent or greater) that the Veteran’s current diagnosis of hypertension is causally related to, or aggravated by, herbicide exposure. In this regard, the examiner is asked to pay special attention to the Veterans and Agent Orange: Update 11 (2018), from NAS, which found sufficient evidence of an association between hypertension and exposure to Agent Orange and other herbicides used during the Vietnam War. Again, any opinion should include a complete rationale. If any aggravation is found, the examiner should address the baselines manifestations and the increased manifestations due to the diabetes mellitus or herbicide exposure. A detailed rationale supporting the examiner’s opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 2. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. 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. §§ 5109B, 7112 (2012). Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Garrett H. Mulrain, Associate Counsel