Citation Nr: 19155487 Decision Date: 07/17/19 Archive Date: 07/17/19 DOCKET NO. 12-24 108 DATE: July 17, 2019 ORDER Entitlement to service connection for hypertension to include as secondary to service-connected diabetes and service-connected left knee disabilities, to include as due to Agent Orange exposure, is granted. REMANDED Entitlement to service connection for gout, to include as secondary to hypertension, to include as due to Agent Orange exposure is remanded. FINDING OF FACT The most probative evidence of record demonstrates that hypertension is due to Agent Orange exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension as due to Agent Orange exposure have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to August 1973, with service in the Republic of Vietnam from October 1970 to October 1971. In November 2014, the Veteran appeared at a Board hearing and testified before the undersigned Veterans Law Judge. In September 2017, the Board remanded the Veteran’s claims for further evidentiary development. Service Connection Entitlement to service connection for hypertension to include as secondary to service-connected diabetes and service-connected left knee disabilities, and/or as due to Agent Orange exposure Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). In addition, service connection for certain chronic diseases, including hypertension may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). The Vietnam era is the period beginning on February 28, 1961 and ending on May 7, 1975 for veterans who served in the Republic of Vietnam, and the period beginning on February 28, 1961 and ending on May 7, 1975, in all other cases. 38 U.S.C. § 101(29)(A). Service in the Republic of Vietnam is “service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.” 38 C.F.R. § 3.307(a)(6)(iii). For veterans presumed to have been exposed to herbicides, certain enumerated diseases shall be service connected even though there is no record of such disease during service, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Hypertension is not a presumptive disease. See 38 C.F.R. § 3.309(e); Diseases Not Associated with Exposure to Certain Herbicide Agents, 68 Fed. Reg. 27,630 (May 20, 2003); Diseases Not Associated with Exposure to Certain Herbicide Agents, 67 Fed. Reg. 42,600 (June 24, 2002); Diseases Associated with Exposure to Certain Herbicide Agents; Type 2 Diabetes, 66 Fed. Reg. 2,376 (Jan. 11, 2001); Diseases Not Associated with Exposure to Certain Herbicide Agents, 64 Fed. Reg. 59,232 (November 2, 1999). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2018); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran alleges that his hypertension is related to active service, to include as secondary to his service-connected diabetes and his service-connected left knee disabilities. See March 2019 Appellate Brief, pgs. 3-4. The Veteran also alleges that he was exposed to Agent Orange while he was serving in the Republic of Vietnam. The Veteran is currently service-connected for, among other disabilities, diabetes, and left knee replacement (previously rated as degenerative joint disease, left knee, status post meniscectomy/debridement); painful scar, status post left knee arthroscopic surgery associated with degenerative joint disease, left knee, status post meniscectomy/debridement; and scar, status post left knee arthroscopic surgery associated with degenerative joint disease, left knee, status post meniscectomy/debridement. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). A January 2018 VA examination was conducted for hypertension. The Veteran was noted to have a diagnosis of hypertension. The first element of service connection is met. Second, the Board finds that there was an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The National Personnel Records Center noted that the Veteran served in Vietnam from October 1970 to October 1971. Accordingly, the second element of service connection is met. Third, the Board finds that the evidence of record supports a finding that hypertension is related to active service, to include as due to Agent Orange exposure. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). A January 2018 VA examination was conducted for hypertension. The examiner opined that it was less likely than not that the Veteran’s hypertension was incurred in or caused by the claimed in-service injury, event, or illness because hypertension was not diagnosed during service. The examiner also cited a number of risk factors for primary (essential) hypertension, and for secondary or contributing causes of hypertension. A March 2018 Diabetes Mellitus Disability Benefits Questionnaire (DBQ) was completed. In the report, the examiner opined that the Veteran’s diabetes mellitus at least as likely as not permanently aggravated his hypertension. A January 2019 VA examination was conducted for hypertension. The examiner provided two nexus opinions, stating in one part that the Veteran’s hypertension was less likely than not caused by or a result of in-service events because the Veteran was not diagnosed with hypertension during military service. However, elsewhere in the report, the examiner opined that the Veteran’s hypertension was at least as likely as not caused by or a result of in-service events/exposure to herbicide during deployment to Vietnam based on the most recent findings from the National Academy Science. The Board find that the opinions are not conflicting as the question posed to the examiner was whether hypertension was related to a diagnosis during service; as no diagnoses was made during service, the examiner opined it was not related. But the examiner then concluded that based on a later diagnosis and the most recent findings by the NAS, the hypertension was related to Agent Orange exposure. The Board finds this opinion significantly probative as it was based upon a review of the evidence and the examiner provided a supporting explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). As the two negative nexus opinions note that there was no diagnosis during service, they do not address this theory of entitlement. Thus, there is no competing etiological opinion. Accordingly, service connection is granted.   REASONS FOR REMAND Entitlement to service connection for gout, to include as secondary to service-connected hypertension and/or as due to Agent Orange exposure is remanded. Remand is required to obtain an adequate VA examination that addresses all theories of recovery. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). The Veteran alleges that his gout is related to active service, to include as secondary to hypertension. See March 2019 Appellate Brief, pg. 6. The Veteran also alleges that he was exposed to Agent Orange while he was serving in the Republic of Vietnam. A January 2018 VA examination was conducted. The Veteran was noted to have gout on the left foot. After interviewing the Veteran and providing an examination, the examiner opined that the Veteran’s gout was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner cited the risk factors for developing gout, including high blood pressure or hypertension. The examiner opined that there was no medical evidence in the Veteran’s service treatment records or otherwise to show that gout was related to, a residual of or aggravated by herbicide exposure. However, the examination report did not address whether the gout was caused by or aggravated by the Veteran’s hypertension. A January 2019 Gout DBQ was completed without an in-person examination. The examiner opined that the Veteran’s claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner stated that the Veteran’s STRs were silent for any acute or vague symptoms of gout and cited risk factors for developing gout, which included high blood pressure. However, the examination report did not whether the Veteran’s gout was caused by or aggravated by the Veteran’s hypertension. As there is no adequate VA examination of record, remand is necessary for a new VA examination. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of gout, to include as secondary to hypertension. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must elicit from the Veteran a full history and/or description of his active service. (a.) The examiner must opine whether gout was at least as likely as not (50 percent or greater probability) caused by the Veteran’s hypertension. (b.) The examiner must opine whether gout was at least as likely as not (50 percent or greater probability) aggravated by the Veteran’s hypertension. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2018). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice   scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Nguyen, 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.