Citation Nr: 20002437 Decision Date: 01/10/20 Archive Date: 01/10/20 DOCKET NO. 14-20 195 DATE: January 10, 2020 REMANDED Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served in the United States Navy from August 1964 to August 1966. This matter comes before the Board of Appeals (Board) on appeal from a June 2011 rating decision by the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA) in which the RO, inter alia, denied service connection for hypertension. In February 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is of record. In July 2018, the Board remanded the matter for further evidentiary development. The Veteran contends that his hypertension is related to herbicide agent exposure, or, alternatively, caused or aggravated by his service-connected diabetes. The Veteran served abroad the USS Salisbury Sound AV-13 which was in the official waters of the Republic of Vietnam from March 4, 1966 to March 26, 1966, May 15, 1966 to June 3, 1966, and July 10, 1966. VA has conceded exposure to Agent Orange. The Board notes that hypertension is not on the list of diseases presumed associated with exposure to Agent Orange; however, even if a disease is not on the list of disease presumed service connected in veterans exposed to Agent Orange, the Veteran may nonetheless establish entitlement to service connection by showing his hypertension was actually caused by his Agent Orange exposure. See 38 U.S.C.§1113(b); 38 C.F.R.§3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). Pursuant to the July 2018 Board remand, a medical opinion was obtained in February 2019. While the physician who provided the February 2019 opinion found no causal relationship between hypertension and the Veteran’s Agent Orange exposure, this opinion was based partially on the National Academy of Sciences (NAS) Institute of Medicine report indicating that there is "limited or suggestive evidence" of a relationship between Agent Orange exposure and hypertension.” See Health Outcomes Not Associated With Exposure to Certain Herbicide Agents; Veterans and Agent Orange: Update 2008, 75 Fed. Reg. 81,332-01 (Dec. 27, 2010)). Although as a general matter, such non-record materials are not constructively before the Board, Euzebio v. Wilkie, 31 Vet. App. 394 (2019), here the report was previously mentioned in the Board remand and by the physician who provided the February 2019 opinion. Therefore, the Board notes the more recent publication of a more favorable report of a NAS study, Veterans and Agent Orange: Update 11 (2018), which found "sufficient evidence" of an association between hypertension and exposure to herbicide agents such as Agent Orange. This publication upgrades hypertension's previous classification in the category of "limited or suggestive" evidence of an association, to the category of "sufficient" evidence of an association. According to the NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. Considering the foregoing, a VA medical opinion is necessary. Additionally, the evidence of record is insufficient to determine whether the Veteran’s service-connected diabetes caused or aggravated his hypertension. A February 2011 VA examiner opined that hypertension was not a complication of the Veteran’s diabetes because they were diagnosed simultaneously. An April 2014 VA examiner noted that the Veteran was diagnosed with diabetes and hypertension concurrently after seeking treatment for shortness of breath. The examiner opined that the Veteran had uncontrolled hypertension before diabetes. The above-mentioned opinions are inadequate because both examiners essentially impose a temporal requirement, which is not inherent in 38 C.F.R. § 3.310(a). See Frost v. Shulkin, 29 Vet. App. 131 (2017) (holding that for a veteran to be service-connected on a secondary basis under a causation theory, the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred). It is possible that the Veteran's diabetes may have onset prior to its diagnosis. Moreover, even if onset was at the same time, the diabetes could aggravate the hypertension. Therefore, an opinion should be obtained whether the service-connected diabetes may have caused or aggravated the Veteran’s hypertension. Although the Board regrets the additional delay, a remand for a new opinion is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matter is REMANDED for the following action: Obtain a medical opinion from a physician to address the etiology of the Veteran's hypertension. (a) The physician should opine as to whether it is at least as likely as not the Veteran's hypertension is related to presumed exposure to herbicide agents during service. The physician is requested to consider and discuss as necessary the National Academy of Science's Agent Orange: Update 11 (2018), which upgrades hypertension from the category of "limited or suggestive" evidence of an association with herbicide exposure to the category of "sufficient" evidence. The physician is advised that service connection for a disease can be established on a direct basis as related to Agent Orange and that service connection is not precluded solely because the disease is not listed as a presumptive condition associated with herbicide exposure. Thus, the opinion and associated rationale must address the likelihood that this particular Veteran's hypertension is related to herbicide agent exposure. (b) The physician should opine as to whether it is at least as likely as not that the Veteran's hypertension is (1) caused by service-connected diabetes; OR (2) aggravated by service-connected diabetes. A complete, well-reasoned rationale must be provided for any opinion offered. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Wells, 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.