Citation Nr: 1815937 Decision Date: 03/16/18 Archive Date: 03/23/18 DOCKET NO. 14-00 400 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for hypertension, claimed as due to herbicide exposure or as secondary to ischemic heart disease. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to November 1971. Service in the Republic of Vietnam is indicated by the record. The Veteran is the recipient of the Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In August 2015, the Veteran testified at a Board hearing. A transcript of the hearing has been associated with the Veteran's VA claims file. In a September 2015 Board decision, the claim was remanded for further evidentiary development. The VA Appeals Management Center (AMC) continued the previous denial in a February 2016 supplemental statement of the case (SSOC). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action on his part is required. REMAND The Veteran contends that he has hypertension, which is due to herbicide agent exposure incurred during his active military service. See the Veteran's VA Form 9 dated December 2013. He alternatively contends that his hypertension is caused or aggravated by his service-connected coronary artery calcifications (ischemic heart disease). See the Veteran's statement dated August 2015. For the reasons set forth below, the Board finds that this matter must be remanded for additional evidentiary development. As indicated above, this matter was remanded by the Board in September 2015, at which time the AOJ was instructed to review the expanded record and accomplish any other development deemed necessary with regards to the Veteran's claim for service connection for hypertension, including as secondary to service-connected disability, to include medical examinations and/or opinions. The Veteran was thus afforded a VA examination with medical opinion in December 2015 at which time the examiner determined that the Veteran's diagnosed hypertension is not proximately caused by or aggravated by his service-connected coronary artery calcification (ischemic heart disease). The negative nexus opinion was supported with rationale. The December 2015 VA examiner, however, did not address the question of direct service connection; specifically, whether the Veteran's diagnosed hypertension was incurred in his active military service. To this end, the Veteran's November 1971 service separation examination documented a blood pressure reading of 140/80 mm/Hg, which was higher than his earlier blood pressure readings. In addition, the VA examiner did not address whether the Veteran's hypertension is etiologically related to his presumed herbicide exposure in the Republic of Vietnam. See 38 U.S.C. § 1116(f) (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2017). Although a presumption of service connection based on exposure to herbicide is not available for hypertension, service connection for the disease may be granted on a direct basis. See 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e) (2017); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As such, remand for a VA addendum opinion is warranted to address the etiology of the Veteran's diagnosed hypertension to include the question of direct service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). Accordingly, the case is REMANDED for the following action: 1. The AOJ shall refer the VA claims file to an examiner with appropriate expertise. The examiner is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. Then, the examiner should respond to the following: (a) Is it at least as likely as not that the diagnosed hypertension had its onset in service, or is otherwise the result of a disease or injury in service, to include presumed in-service exposure to herbicides? In answering this question, the examiner should address the Veteran's blood pressure reading (140/80 mm/Hg), which was documented in his November 1971 service separation examination. (b) Is it at least as likely as not that the diagnosed hypertension was caused by a service-connected disability, to specifically include coronary artery calcification (ischemic heart disease)? (c) Is it at least as likely as not that the Veteran's diagnosed hypertension is aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by a service-connected disability, to specifically include coronary artery calcification (ischemic heart disease)? If the Veteran's diagnosed hypertension is aggravated by a service-connected disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. Should the examiner decide that a physical examination of the Veteran is required to address these questions, one should be scheduled. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 2. After conducting any additional development deemed necessary, the AOJ should readjudicate the claim, considering all the evidence of record. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court. 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) (2017).