Citation Nr: 1824063 Decision Date: 04/19/18 Archive Date: 04/26/18 DOCKET NO. 93-07 167A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for hypertension, to include as secondary to in-service herbicide exposure or to a service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from March 1970 to March 1972. This matter comes back before the Board of Veterans' Appeals (Board) on Remand from the United States Court of Appeals for Veterans Claims regarding a Board decision rendered in March 2017. This matter was originally on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Nashville, Tennessee. In January 2016, the Veteran testified at a videoconference hearing. A transcript of that hearing is included in the claims file. 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) (West 2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In a March 2017 decision, the Board denied service connection for hypertension. The Board noted that record did not demonstrate hypertension during service or within a year following his discharge from service. The Board also noted that the medical opinions obtained found that it was not at least as likely as not the Veteran's diabetes mellitus or ischemic heart disease had caused or aggravated the Veteran's hypertension. The Board further found that the Veteran's hypertension was not due to conceded herbicide exposure. The Board noted, In 2006, the National Academy of Science released its biannual report removing hypertension from the category of inadequate or insufficient evidence of an association to Agent Orange exposure to limited or sufficient evidence of a suggestive association to Agent Orange exposure. See Health Effects Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 32,540, 32,549, Notice (Jun. 8, 2010) (discussing "Veterans and Agent Orange: Update 2006"); See also 77 Fed. Reg. 47924, 47926, Notice (Aug. 10, 2012) (discussing Update 2010). At the Federal Government's direction, the Institute of Medicine of the Academy issues a report every two years on the effects of Agent Orange and similar herbicides to various diagnoses. The Board notes that the Secretary has reviewed each report by the Institute since 2006, which spends time and manpower resources going over the data on any link between Agent Orange exposure and hypertension. The current data on hypertension and Agent Orange is that there may be a limited suggestion for an association between the two. The Secretary, however, has concluded that the current sound medical and scientific evidence viewed by the Institute does not establish a positive association between the exposure of humans to an herbicide agent, and the occurrence of hypertension. As noted, hypertension is not one of the conditions the Secretary has determined that a presumption of service connection is not warranted based upon reports. Further, the Veteran has not presented any expert evidence which establishes that the Veteran's hypertension resulted from Agent Orange exposure. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). ... Accordingly, the Board must follow the Secretary's determination and deny service connection for hypertension on the basis of the Veteran's herbicide exposure, because the only basis or evidence raising the issue is an argument that the Institute of Medicine study establishes a link and that is an argument that hypertension should be presumptively linked to herbicide exposure, and the Secretary has declined to include hypertension on the list. Therefore, the evidence is insufficient to establish entitlement to service connection on the basis of a link to Agent Orange exposure because the Veteran has provided no other evidence of a link. The Veteran appealed the Board's March 2017 decision to the Court of Appeals for Veterans Claims (CAVC). In a Joint Motion for Remand the parties, the Veteran and the Secretary of VA, agreed that the case should be vacated and remanded because the Board failed to provide the Veteran with an adequate medical examination which addressed whether hypertension was caused or aggravated by his in-service herbicide exposure. The parties noted that in light of the NAS Institute of Medicine's Veterans and Agent Orange: Update 2012 conclusion that there is "limited or suggestive" evidence of an association between exposure to Agent Orange and hypertension, the Board erred in failing to obtain a VA examination that addressed a theory of entitlement based on actual exposure. 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. The Veteran should be afforded a VA examination by a physician. The physician is to be provided access to the claims file in conjunction with the examination. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The physician should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that hypertension was caused or aggravated by exposure to herbicide agents such as Agent Orange while in Vietnam. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide a complete rationale for any opinion offered. 2. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 3. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, 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 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 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).