Citation Nr: 1817294 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 11-18 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Arnold, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to April 1968. The Veteran served in the Republic of Vietnam. This matter came before the Board of Veterans Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2014, the Board remanded this matter for further evidentiary development. In March 2015, the Board remanded the issues of service connection for hypertension and bilateral neuropathy for further evidentiary development and remanded the issues of service connection for a psychiatric disorder and peripheral vascular disease (PVD) for the issuance of a statement of the case (SOC). Manlincon v. West, 12 Vet. App. 238 (1999). In June 2016, the RO issued a rating decision that granted service connection for unspecified anxiety disorder with panic attacks. As the decision constituted a full grant of benefits sought on appeal for that issue, it is not before the Board. With regards to the issue of service connection for PVD, as the Veteran elected the Decision Review Officer process in June 2016 and the SOC has not yet been issued, that issue is not before the Board. In November 2017, the RO issued a rating decision that granted service connection for neuropathy of the right and left upper and lower extremities. As the decision constituted a full grant of benefits sought on appeal for those issues, they are not before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). The March 2015 Board remand requested a supplemental medical opinion addressing two issues: 1) whether the Veteran's hypertension is related to service, to include exposure to herbicides, and 2) whether hypertension was aggravated by diabetes, coronary artery disease or renal insufficiency. Pursuant to the remand, a VA medical opinion was obtained in September 2017. Regarding the first question, the examiner noted that the Veteran was presumed exposed to herbicides, and then stated that hypertension was less likely than not due to that exposure, as hypertension is not a presumptive diagnosis of herbicide exposure/Camp Lejeune exposure unless VARO/WA decides it is a presumptive diagnosis of either of these. This rationale is essentially based on the fact that hypertension is not entitled to presumptive service connection based on herbicide agent exposure. See 38 C.F.R. § 3.309 (e) (2016). While the opinion goes on to explain that hypertension is likely the result of genetic and environmental factors, it does not explain why exposure to herbicides is not one of those environmental factors. The United States Court of Appeals for Veterans Claims has held, in the context of an opinion considering the issue of herbicide agent exposure, that "a medical nexus opinion finding a condition is not related to service because the condition is not entitled to presumptive service connection, without clearly considering direct service connection, is inadequate on its face." See Stefl v. Nicholson, 21 Vet. App. 120 (2007). Thus, the opinion on direct service connection with respect to the issue of herbicide agents is inadequate, and on remand a new opinion with respect to the issue of herbicide agents is required. As noted in the March 2015 Board remand, although VA has not conceded a relationship between hypertension and Agent Orange, in its 2006 Update the National Academy of Science (NAS) elevated hypertension to the "Limited or Suggestive Evidence" category. Update 2012 provides the history of NAS changing the categorizing of hypertension beginning in its 2006 Update and subsequent Updates. See Fed. Reg. 20, 308 (Apr. 11, 2014). The NAS updates are published in the Federal Register by VA, and thus VA is on notice as to the information contained therein. 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. This Update was not discussed in the September 2017 opinion. On remand, it should be discussed. With respect to the requested opinion on aggravation, the September 2017 examiner found no aggravation, noting that diabetes and renal insufficiency were both diagnosed after hypertension and were therefore not secondary to hypertension. However, the Board notes that the question of aggravation is not a question of causation, but a question of whether one condition caused the other to increase in severity, which the examiner did not address. The Board notes that the examiner also found that coronary artery disease did not aggravate the Veteran's hypertension, but the examiner did not provide any rationale for that opinion. A new opinion regarding aggravation is therefore required upon remand. Accordingly, the case is REMANDED for the following action: 1. Arrange for a supplemental medical opinion by an appropriate provider to address the nature and likely etiology of the Veteran's hypertension. The examiner should review the file and provide a complete rationale for all opinions expressed. The examiner should respond to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is related to his active service, to include exposure to herbicides? The examiner should note that the Veteran is presumed to have been exposed to herbicides in service. In this regard, the examiner is advised that the fact that a VA presumption has not been established for a particular disorder is not dispositive of the issue of nexus and consideration must still be given to the exposure. In rendering a nexus opinion, attention is requested to the NAS Updates regarding hypertension and herbicide exposure. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was aggravated by his service-connected: (i) diabetes mellitus, (ii) coronary artery disease, and/or (iii) renal insufficiency. In this regard, the examiner is advised that the question of aggravation is not one of causation but whether one disability causes the other to increase in severity. If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation by the service-connected disability. 2. The examination report must be reviewed to ensure it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. 3. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. The appellant 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 matter must be afforded expeditious treatment. The law requires that all issues 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). _________________________________________________ E. I. VELEZ 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).