Citation Nr: 1806618 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 09-17 861 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, and/or as secondary to exposure to herbicide agents. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Melissa Barbee, Associate Counsel INTRODUCTION The Veteran had active duty service in the United States Air Force from May 1966 to June 1972, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board has previously remanded this claim twice, in October 2012 and February 2016, for additional development. However, as discussed below, the Board is not satisfied that there was substantial compliance with its prior remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Accordingly, the appeal is again REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that his hypertension is due to his service-connected diabetes mellitus and/or his exposure to herbicide agents in service. In a December 2015 post-remand brief, the Veteran's representative raised the alternative theory of entitlement that the Veteran's hypertension is secondary to exposure to herbicide agents during service in Vietnam. The representative cited to Institute of Medicine reports from 2006, 2010, and 2012, which suggest there may be a link between exposure to herbicide agents and hypertension. The Board's February 2016 remand instructed the RO to provide the Veteran with proper notice as to how to substantiate his claim for service connection on a secondary basis due to exposure to herbicide agents and to request that the Veteran submit any additional evidence to support his claim. The RO was then instructed to provide the Veteran with a statement of the case addressing this theory of entitlement. There is no evidence in the claims file to indicate that the RO complied with these directives. As the RO has not yet carried out the necessary development on the alternative theory of entitlement based on herbicide agent exposure, the claim must again be remanded. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). The Board also finds it necessary to obtain an addendum medical opinion that addresses whether the Veteran's hypertension was caused by his in-service herbicide exposure. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board notes that hypertension is not a disease that has been found to be presumptively associated with exposure to herbicide agents. See 38 C.F.R. § 3.309(e). However, service connection is available on a direct basis if there is evidence that the Veteran's hypertension is related to herbicide agent exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Here, the Veteran's exposure to herbicide agents is conceded based on his service in Vietnam, and there is evidence that suggests an association between herbicide agent exposure and hypertension. However, there is no medical opinion of record which addresses whether the Veteran's hypertension is related to such exposure. As such, remand for an addendum opinion regarding whether the Veteran's hypertension was caused by exposure to herbicide agents on a non-presumptive, i.e. direct, basis, is necessary. The medical opinion should specifically address the findings contained in the Institute of Medicine reports cited by the Veteran's representative in the August 2015 appellant brief. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with proper notice informing him of the elements necessary to establish service connection for hypertension on a secondary basis due to exposure to herbicide agents. Allow the Veteran the opportunity to submit or identify (so VA can obtain it on the Veteran's behalf) any additional information or evidence to substantiate his claim. 2. After completion of the above, return the claims file to the VA examiner who examined the Veteran in November 2016, pursuant to the Board's February 2016 remand instructions (or another examiner if that individual is unavailable), to provide an addendum medical opinion. A full VA examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety, to include the medical literature of record, and that review must be noted in the report. Thereafter, the examiner should provide an opinion with respect to the following: (a) Is it as least as likely as not (50 percent or greater probability) that the Veteran's hypertension was caused by his exposure to herbicide agents in service? In rendering the above opinion, the VA examiner should discuss the relevance, if any, of the findings in the Institute of Medicine report referenced by the Veteran in the August 2015 appellant brief that categorizes hypertension as having limited or suggestive evidence of association with herbicide agent exposure. NOTE: The term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner should set forth a complete rationale for the conclusion reached. If an opinion cannot be reached without resorting to speculation, the examiner must explain why. 3. After ensuring compliance with the above, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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. _________________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, 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).