Citation Nr: 19140647 Decision Date: 05/28/19 Archive Date: 05/28/19 DOCKET NO. 18-16 021 DATE: May 28, 2019 REMANDED Entitlement to service connection for a speech disability, to include as secondary to a stroke is remanded. Entitlement to service connection for hypertension, to include as due to herbicides such as Agent Orange is remanded. Entitlement to service connection for hypothyroid, to include as due to herbicides such as Agent Orange is remanded. Entitlement to service connection for residuals of a stroke, to include as due to herbicides such as Agent Orange is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1965 to October 1970, including service in Vietnam. He is a recipient of the Bronze Star with an Oak Leaf Cluster and served under combat conditions. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a March 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board finds that the Veteran’s claims must be remanded for further development before making a fully informed decision. The Veteran served in Vietnam from October 1969 to October 1970. A Veteran who, during service, served in the Republic of Vietnam during the Vietnam era, beginning in January 1962 and ending in May 1975, shall be presumed to have been exposed during such service to herbicide agents, including an herbicide commonly referred to as Agent Orange. 38 U.S.C.A. § 1116 (a)(3); 38 C.F.R. §§ 3.307, 3.309. Therefore, the Veteran’s Agent Orange exposure has been presumed based on his presence in the Republic of Vietnam If a Veteran was exposed to Agent Orange, certain enumerated diseases will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. 38 U.S.C.A. § 1116 (a)(2); 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Whenever VA’s Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease. 38 U.S.C.A. § 1116 (b)(1). The Veteran has been diagnosed with hypertension and hypothyroidism. In addition, he unfortunately suffered a cerebral vascular accident (CVA), commonly called a stroke, in July 2001. Apparently due to the CVA, he developed speech problems diagnosed as ataxic dysarthria. The Veteran asserts his hypertension, hypothyroidism, and CVA all resulted from Agent Orange exposure. In addition, the record raises the question whether the CVA, if not related to service, could have been caused by his hypertension. Hypertension, hypothyroidism, and CVA are not one of the diseases that is presumed to be associated with exposure to herbicide agents under 38 C.F.R. § 3.309 (e). The National Academy of Sciences has recently concluded that there is sufficient evidence of an association between hypertension and herbicide agents. The sufficient category reflects that “there is enough epidemiologic evidence to conclude that there is a positive association.” See Hypertension Upgraded in Latest Biennial Review of Research on Health Problems in Veterans that May be Linked to Agent Orange Exposure during Vietnam War, The National Academies of Sciences, Engineering, and Medicine (Nov. 15, 2018) (press release), http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137. This categorization represents a change from hypertension’s previous classification in the category of limited or suggestive evidence, meaning that “epidemiologic research results suggest an association between exposure to herbicides and a particular outcome, but a firm conclusion is limited because chance, bias, and confounding factors could not be ruled out with confidence.” Id. To date, the Secretary has not acted upon the recent NAS conclusion. Moreover, there is evidence of an association between exposure to certain herbicides and hypothyroidism. In the same update, the NAS also considered the body of epidemiologic data, in combination with strong biologic plausibility, to represent limited or suggestive evidence of an association between exposure to herbicides and hypothyroidism. Veterans and Agent Orange: Update 11 (2018), the National Academies of Sciences, Engineering and Medicine (NAS). There has not been a VA examination to determine whether the Veteran’s hypertension, hypothyroidism, CVA, and ataxic dysarthria disabilities are related to incidents noted in the service treatment records, service generally, including his Agent Orange exposure, or whether any one of these disabilities are secondarily caused by another disability that may be ultimately service connected. Once the records development is completed, a VA medical examination and accompanying medical opinion is needed to ascertain whether the disabilities are present and to ascertain the relationship to service. 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). The opinions must address whether the Veteran’s presumed exposure to herbicide agents while in Vietnam caused his disabilities and if so, whether one of those disabilities in turn caused or aggravated another claimed disability. Ongoing medical records should also be obtained. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his hypertension, hypothyroidism, CVA, and ataxic dysarthria. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that hypertension is related to an in-service injury, event, or disease, to include Agent Orange exposure. In answering this question, the examiner must specifically discuss the NAS Veterans and Agent Orange: Update 11 (2018) study. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as the Board is precluded from making any medical findings. 3. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current hypothyroidism is related to an in-service injury, event, or disease, to include Agent Orange exposure. In answering this question, the examiner must specifically discuss the NAS Veterans and Agent Orange: Update 11 (2018) study. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as the Board is precluded from making any medical findings. 4. After records development is completed, schedule the Veteran for a VA examination to determine to whether it is at least as likely as not (50 percent probability or greater) that the 2001 CVA is related to an in-service injury, event, or disease, to include Agent Orange exposure. In answering this question, the examiner must specifically discuss the NAS Veterans and Agent Orange: Update 11 (2018) study. The examiner should also address whether the CVA is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) by hypertension. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as the Board is precluded from making any medical findings. 5. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that ataxic dysarthria is related to an in-service injury, event, or disease. The examiner should also address whether ataxic dysarthria is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) the Veteran’s 2001 CVA. (Continued on the next page)   The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as the Board is precluded from making any medical findings. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Russell P. Veldenz, 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.