Citation Nr: 19191237 Decision Date: 12/05/19 Archive Date: 12/04/19 DOCKET NO. 17-26 031 DATE: December 5, 2019 REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for bladder cancer is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1965 to June 1968, including service in the Republic of Vietnam. The Veteran attended a videoconference hearing before the undersigned Veterans Law Judge in October 2019. A transcript of the hearing is of record. 1. Entitlement to service connection for hypertension is remanded. The Veteran contends that his current hypertension condition is related to his active service. Specifically, the Veteran contends that his hypertension was directly caused by his exposure to herbicides. The Veteran served on active duty in the Republic of Vietnam and is therefore presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307. The Veteran had an examination for his hypertension disability in September 2016. The examiner opined that it was less likely than not that the Veteran's chronic hypertension was the result of the service. The examiner noted that the Veteran’s service treatment records do not demonstrate documented blood pressure over 140/80. The Board finds the September 2016 examiner’s opinion to be inadequate. The September 2016 examiner did not provide a clear rationale, and it is not clear whether the examiner fully considered the Veteran’s noted instances of high blood pressure issues in service. Additionally, the examiner did not address whether the Veteran’s current hypertension condition is related to his in-service exposure to herbicides. Although hypertension is not a condition that is presumed to be caused by herbicide exposure under VA regulations, the National Academy of Sciences recently upgraded hypertension to the “sufficient” category from “limited or suggestive,” indicating that “there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. Additionally, at the October 2019 Board hearing, the Veteran raised the issue of whether his hypertension was caused or aggravated by his service-connected post-traumatic stress disorder (PTSD). Accordingly, remand is appropriate to address whether the Veteran’s hypertension is related to his active service, to include his exposure to herbicides, and to assess whether his hypertension was caused or aggravated by his service-connected disabilities, to include his PTSD. 2. Entitlement to service connection for bladder cancer is remanded. The Veteran contends that his bladder cancer is related to his active service, specifically as a result of exposure to herbicides while serving in the Republic of Vietnam. A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81–86 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). These elements are satisfied regarding the claim of entitlement to service connection for bladder cancer. There is competent evidence of record that the Veteran has a current diagnosis of bladder cancer based on VA treatment records. There is an indication that the Veteran’s current bladder cancer may be related to his in-service exposure to herbicides, such as Agent Orange, but there is insufficient evidence of record by which the Board can make a decision. As the McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from a qualified VA medical professional to determine whether the Veteran’s hypertension disability was related to his military service, including his presumed exposure to herbicides. The record must be made available to and reviewed by the VA examiner. Any indicated evaluations, studies, and tests should be conducted. Following a review of the entire record, the examiner should address the following questions: a) Is it at least as likely as not (i.e., a 50 percent or greater probability) that a claimed hypertension disability had its onset in, or is otherwise related to his period of active duty service, to include his exposure to herbicides while in Vietnam? Additionally, the examiner must specifically address the Veteran’s noted instances of high blood pressure in service noted in his service treatment records. See VBMS, document labeled STR-Medical, receipt date 09/27/1968, pages 22-23, 27-28, and 86. Note that in November 2018, the National Academy of Sciences upgraded the relationship between hypertension and herbicide exposure from “limited or suggestive” to “sufficient,” indicating that “there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. See National Academies of Sciences, Engineering, and Medicine. 2018. Veterans and Agent Orange: Update 11 (2018). https://www.nap.edu/read/25137/chapter/12 (last accessed September 2019). b) Notwithstanding the above, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s claimed hypertension disability was caused by his service-connected PTSD? c) Notwithstanding the above, is it at least as likely as not (50 percent or greater probability) that the Veteran’s claimed hypertension disability was aggravated by his service-connected PTSD? Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. 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. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner should note that the lack of a diagnosed hypertension disability in service cannot serve as the sole basis for a negative finding. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 2. Schedule the Veteran for a VA examination to determine whether the Veteran’s bladder cancer is related to his military service and/or secondary to his service-connected disabilities. The record must be made available to and reviewed by the VA examiner. Any indicated evaluations, studies, and tests should be conducted. Following a review of the entire record, the examiner should address the following questions: a) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s bladder cancer had its onset in, or is otherwise related to his period of active duty service, to include his exposure to herbicides while in Vietnam? Additionally, the examiner must specifically address the Veteran’s lay statements of record, to include his statements regarding potential parasitic infection in-service, exposure to chemicals in-service, and lack of other risk factors for bladder cancer, with the exception of smoking. See VBMS, document labeled Hearing Transcript, receipt date 10/04/2019, pages 2 through 7. Note that in November 2018, the National Academy of Sciences in the most recent Agent Orange update concluded there was “limited or suggestive evidence of an association” between herbicide exposure and bladder cancer. See National Academies of Sciences, Engineering, and Medicine. 2018. Veterans and Agent Orange: Update 11 (2018). https://www.nap.edu/read/25137/chapter/9 (last accessed December 2019). b) Notwithstanding the above, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s bladder cancer was caused by his service-connected hepatitis C? c) Notwithstanding the above, is it at least as likely as not (50 percent or greater probability) that the Veteran’s bladder cancer was aggravated by his service-connected hepatitis C? Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. 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. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner should note that the lack of diagnosed bladder cancer in service cannot serve as the sole basis for a negative finding. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David M. Sebstead, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.