Citation Nr: 1825974 Decision Date: 04/26/18 Archive Date: 05/07/18 DOCKET NO. 13-10 214 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected coronary artery disease (CAD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Dupont, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1970 to September 1972, with service in Vietnam from September 1971 to September 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Lincoln, Nebraska, Department of Veterans Affairs (VA) Regional Office (RO), which inter alia denied service connection for hypertension, to include as secondary to service-connected CAD. In an April 2013 VA Form 9, the Veteran requested a hearing before the Board. In a statement received in May 2014, he withdrew such request. A February 2017 Board decision denied service connection for hypertension, to include as secondary to service-connected CAD. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (CAVC), resulting in an October 2017 Joint Motion for Remand (JMR) by the parties. An October 2017 CAVC Order remanded the matter for compliance with the JMR instructions. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action on his part is required. REMAND As outlined in the October 2017 JMR, the record reflects that the Veteran has a current diagnosis of hypertension, and that he served in the Republic of Vietnam (and is presumed to have been exposed to herbicides by virtue of such service). The Board denied service connection based on findings that hypertension was not manifested in service or within one year of separation, hypertension is not a disease for which service connection can be presumed under 38 C.F.R. §§ 3.307(a)(6), 3.309(e), hypertension is not shown to be secondary to, or aggravated by, the Veteran's CAD (see December 2012 VA examination report), and that hypertension was not otherwise shown to be related to service. The October 2017 JMR notes that: "The Board failed to consider the National Academy of Sciences (NAS) Institute of Medicine's (IOM's) Veterans and Agent Orange: Update 2006 that the Secretary acknowledged in the Federal Register. See, e.g., 75 Fed. Reg. 32,540, 32,549 (June 8, 2010) ("In Update 2006, NAS concluded that there was 'limited or suggestive evidence of an association between exposure to the compounds of interest and hypertension.'"). The Board should have addressed whether the Secretary's statements satisfy the "low threshold" of indicating that Appellant's hypertension may be related to his in-service Agent Orange exposure, thus requiring a new examination or opinion." Accordingly, a medical advisory opinion regarding whether the Veteran's hypertension is related to his exposure to herbicide agents/Agent Orange (in light of the 2006 NAS Update)is necessary. As the appeal must be remanded for additional development anyway, the Veteran will have the opportunity to submit (or identify for VA to obtain) any outstanding (i.e., those not already in the record) private treatment records pertaining to his hypertension. Any outstanding records of VA evaluation or treatment for hypertension may contain pertinent evidence, are constructively of record, and must be secured. Accordingly, the case is REMANDED for the following: 1. The AOJ should secure for the record updated (to the present, those not already associated with the record) complete clinical records of all VA evaluations and treatment the Veteran has received for hypertension since January 2014 (when the most recent VA treatment records in the record are dated). The AOJ should also ask the Veteran to provide identifying information regarding all private evaluations or treatment he has received for hypertension (records of which are not already in the record) and to provide the authorizations necessary for VA to secure for the record complete clinical records of all such evaluations and treatment. The AOJ should secure for the record complete clinical records (those not already associated with the record) from all providers identified. If any records sought are unavailable, the reason for their unavailability must be noted in the record. If a private provider does not respond to the AOJ's request for identified records sought, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure that private treatment records are received. 2. When the development requested above is completed, the AOJ should return the Veteran's record to the December 2012 examiner for an addendum opinion that addresses whether or not the Veteran's hypertension is related to his service, and specifically as due to his exposure to herbicide agents therein. [If the December 2012 examiner is unavailable or cannot provide the opinion sought, forward the record to another appropriate physician for the opinion sought. If further examination is deemed necessary for the addendum opinion, such should be arranged]. The record (specifically including the October 2017 JMR) must be reviewed by the examiner in conjunction with the examination. The consulting provider should offer an opinion that responds to the following: What is the likely etiology for the Veteran's hypertension? Specifically, is it at least as likely as not (a 50% or greater probability) that it is related to his service, to include as due to his exposure to herbicides therein? The opinion must include rationale that acknowledges the 2006 NAS Update and its conclusion that there is "limited or suggestive" evidence of an association between exposure to Agent Orange and hypertension and discuss its applicability, if any, in the instant case. 3. The AOJ should then review the record and readjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the CAVC. 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).