Citation Nr: 1817105 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 10-10 051 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected coronary artery disease (CAD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. An, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1951 to October 1955 and from December 1955 to April 1972. These matters come before the Board of Veterans' Appeals (Board) from August 2007 and January 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In October 2013, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is associated with the electronic claims file. In February 2014, the Board granted an application to reopen the claim for service connection for hypertension and remanded the reopened claim and the claim of entitlement to a TDIU for additional evidentiary development. In December 2016, the Board denied service connection for hypertension and remanded the claim for TDIU for further development. In November 2017, the Veteran appealed the December 2016 decision to the United States Court of Appeals for Veterans Claims (Court) where the Court granted a Joint Motion for Partial Remand (JMPR). The Court's Order vacated, in part, the December 2016 decision denying service connection for hypertension, and remanded the matter to the Board for consideration consistent with the terms of the joint motion. The record before the Board consists of the Veteran's electronic records located within the Veterans Benefits Management System (VBMS) and Virtual VA. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The November 2017 joint motion for partial remand indicated that the Board failed to ensure compliance with VA's duty to assist when it relied on an inadequate April 2016 VA medical opinion to deny the Veteran's claim for service connection for hypertension. Specifically, the joint motion for partial remand indicated that in February 2014, the Board reopened and remanded the claim for service connection for hypertension seeking a medical opinion as to whether the Veteran's hypertension was either caused or "permanently aggravated by his service-connected coronary artery disease." See November 2017 JMPR, pp. 2-3. As agreed by the parties, the Board's February 2014 remand instruction used an incorrect standard for secondary service connection, meaning it set a higher standard for aggravation than that set out in the regulations for the examiner to use. 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Additionally, the parties agreed that the Board failed to obtain an opinion addressing herbicide exposure. The April 2016 VA examiner did not opine on the issue of whether service connection was warranted for hypertension on the basis of exposure to herbicides during his active service in Vietnam. See November 2017 JMPR, p. 5. In this regard, the Board notes that although VA has not conceded a relationship between hypertension and herbicides, it is significant to note that, prior to 2006, the National Academy of Sciences (NAS) placed hypertension in the "Inadequate or Insufficient Evidence" category. However, in its update in 2006, NAS elevated hypertension to the "Limited or Suggestive Evidence" category. Update 2012 provides the history of NAS changing the categorization of hypertension beginning in its 2006 Update and subsequent Updates. See 79 Fed. Reg. 20,308 (Apr. 11, 2014). Update 2012 notes that NAS has defined this category of limited or suggestive evidence to mean 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. at 20.309. Given the above reasons, the Board finds that remand is warranted to obtain an adequate VA medical opinion contemplating the arguments raised in the joint motion for partial remand, including the correct standard regarding aggravation pursuant to 38 C.F.R. § 3.310, and direct service connection due to exposure to herbicides. Furthermore, as the development ordered above for the Veteran's claim for hypertension could result in information relevant to the issue of entitlement to a TDIU, the Board finds the issues are inextricably intertwined and must be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain an opinion with an appropriate medical professional to determine the nature and etiology of his hypertension. The Veteran's claims file, to include a copy of the remand, must be made available to the examiner along with any other information the medical professional deems pertinent. A note that it was reviewed should be included in the opinion. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. After reviewing the claims file and conducting appropriate testing, if any, the examiner is to provide an opinion as to the following: a) The examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension is related to his active service from October 1951 to October 1955 and from December 1955 to April 1972, to include his exposure to herbicides. A detailed rationale for all opinions expressed should be furnished. The examiner should specifically address Update 2012 from NAS. b) The examiner should also offer an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension manifested within one year of his service discharge and, if so, describe the manifestations. c) The examiner is asked to specifically address whether the Veteran's hypertension is at least as likely as not (a 50 percent or greater probability) proximately due to or the result of the Veteran's service-connected coronary artery disease. d) The examiner is also asked to specifically address whether the Veteran's hypertension is at least as likely as not (a 50 percent or greater probability) aggravated, beyond the natural progress of the disease, by the Veteran's service-connected coronary artery disease. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. The examination opinion must reflect consideration of the lay evidence of record, setting forth a complete rationale for all findings and conclusions. 2. After completing the requested actions, and any additional development deemed warranted, readjudicate the claim for service connection for hypertension and claim for entitlement to TDIU in light of all pertinent evidence and legal authority. 3. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).