Citation Nr: 20003387 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 12-05 126 DATE: January 14, 2020 REMANDED Service connection for hypertension to include as due to exposure to herbicide agents and/or as secondary to service-connected diabetes mellitus is remanded. REASONS FOR REMAND The Veteran had active service with the Army from September 1965 to August 1968, with subsequent service in the Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office in Houston, Texas (RO). The Veteran testified before the undersigned Veterans Law Judge in December 2017 videoconference hearing. A copy of the hearing transcript has been associated with the record. The appeal was previously before the Board in February 2018 and was remanded for record development and a VA examination. Unfortunately, substantial compliance was not obtained on remand, and an additional remand is necessary prior to rendering a decision on the appeal. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Service connection for hypertension to include as due to exposure to herbicide agents and/or as secondary to service-connected diabetes mellitus The Veterans Claims Assistance Act of 2000 requires that VA make reasonable efforts to obtain relevant records that the claimant has adequately identified and authorized the VA to obtain. 38 U.S.C. § 5103A (2012). Within the February 2018 Board remand, the RO was directed to request and associate with the claims file the Veteran’s private treatment records from the University of Texas Medical Branch. Indeed, in an April 2018 letter to the Veteran, the RO requested that he provide a written authorization so that his outstanding medical records could be obtained from the University of Texas. He did not respond to this request; thus, the RO was unable to obtain these records. On remand, the Veteran will be given another opportunity to assist in the development of his own case. After the above development, a VA medical opinion should be requested to determine whether diagnosed hypertension was aggravated by service-connected diabetes mellitus and to determine whether hypertension is etiologically related to exposure to herbicide agents in service. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Reonal v. Brown, 5 Vet. App. 458, 461. Within the December 2017 videoconference hearing, the Veteran testified that he was diagnosed with hypertension in 2007 soon after he was diagnosed with diabetes mellitus at the University of Texas Medical Branch. However, within a September 2019 VA examination, the Veteran reported that he was diagnosed with hypertension before he was diagnosed with diabetes mellitus in 2008. The September 2019 VA examiner opined, in part, that diabetes mellitus did not cause hypertension and that hypertension was not aggravated by diabetes mellitus based upon his interview with the Veteran and because August 2018 VA treatment records show that hypertension was controlled by medication. The Board finds that the VA examiner’s opinion regarding aggravation improperly relied upon the ameliorative effects of medication and was not based on a full evidentiary record. See Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012); see also 38 U.S.C. § 5103A (2012); 38 C.F.R. §§ 3.159 (2018). Additionally, the August 2018 VA examiner did not address whether hypertension was caused by exposure to herbicide agents while in service as requested within the February 2018 Board remand. Stegall, 11 Vet. App. at 270-71. The Veteran’s private treatment records, reflecting his diagnoses of hypertension and diabetes mellitus, should therefore be associated with the claims file and new medical opinions should be rendered prior to further appellate proceedings. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding private treatment records from the University of Texas Medical Branch. Any necessary authorization should be obtained, to include any release that is required from the Veteran. All attempts to obtain these records should be documented in the claims file. If the records are determined to be unavailable, that should be noted in the record. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran and his representative, and allow him the opportunity to provide such records. 2. If the above records are associated with the claims file, order a VA medical opinion to determine whether diagnosed hypertension was aggravated by service-connected diabetes mellitus. It is unclear as to whether hypertension was diagnosed prior to or after the diagnosis of diabetes mellitus based on the Veteran’s reports in the record. Another examination is not required; however, if the VA examiner indicates that he or she cannot respond to the Board’s question without examination of the Veteran, such should be afforded the Veteran. The record should be made available for review in connection with this request, to include private treatment records from the University of Texas Medical Branch. Based upon a review of the relevant evidence, history provided by the Veteran, and sound medical principles, the VA examiner should state and provide opinions as to: a. Whether it is at least as likely as not (a 50 percent or greater probability) that currently diagnosed hypertension is aggravated by service-connected diabetes mellitus. The term “aggravated” as used herein refers to an increase in the claimed disability; that is, a worsening of the disability beyond the natural clinical course and character of the condition. Aggravation of a disability need not be permanent. If the examiner finds that any of the Veteran’s hypertension is aggravated by diabetes mellitus, the examiner must also provide an opinion as to the baseline level of severity of the Veteran’s hypertension prior to any such aggravation. b. Whether it is at least as likely as not (a 50 percent or greater probability) that currently diagnosed hypertension was incurred in or caused by active service, to include as due to verified exposure to herbicide agents. The examiner is asked to specifically opine as to whether it is as least as likely as not that currently diagnosed hypertension was caused by exposure to herbicide agents on a direct basis. The examiner is asked to disregard that hypertension is not included among those diseases listed for which service connection may be presumed due to herbicide agent exposure. 3. After all development has been completed, the AOJ should review the case again based on the additional evidence. If the benefits sought are not granted, the AOJ should furnish the Veteran with a supplemental statement of the case, and should give the Veteran and his representative a reasonable opportunity to respond before returning the record to the Board for further review. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.R. Woodarek, 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.