Citation Nr: 20030262 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 20-11 258 DATE: April 29, 2020 REMANDED Entitlement to service connection for hypertension, including as due to exposure to environmental toxins and as secondary to service-connected Parkinson’s disease, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from September 1972 to March 1973, and from April 1973 to April 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 rating decision issued by a Department of Veterans Affairs (VA) regional office. Entitlement to service connection for hypertension, including as due to exposure to environmental toxins and as secondary to service-connected Parkinson’s disease, is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to conduct additional development. First, a remand is warranted to attempt to verify exposure to herbicides, to include Agent Orange. The Blue Water Navy Vietnam Veterans Act of 2019 (the Act) created new statutory requirements for the adjudication of certain claims based on veterans’ herbicide agent exposure in the offshore waters of the Republic of Vietnam (RVN) during the period from January 9, 1962, to May 7, 1975, in or near the Korean Demilitarized Zone during the period from September 1, 1967, to August 31, 1971, and in Thailand during the period from January 9, 1962, to May 7, 1975. The Act defines “offshore” as a geographical area “not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting” eleven points of latitude and longitude in a table provided. See 38 U.S.C. § 1116A(d). The Veteran’s service personnel records (SPRs) indicate that he served aboard the USS Chicago (CG-11) from May 1973 to April 1975. The SPRs do not include deck logs or the location of the USS Chicago during the period the Veteran served on board; however, the record indicates that between March 1975 and July 1975, the USS Chicago was located in “West Pac-Viet Nam.” See April 2020 Correspondence. As such, a remand is necessary to determine whether the USS Chicago (CG-11) travelled within the offshore waters of the RVN as defined by the Act. See 38 U.S.C. §§ 116A(d), 5103A; 38 C.F.R. § 3.159(c). Second, a remand is warranted to afford the Veteran with a VA examination to determine the etiology of his hypertension. A medical examination is necessary when there is (1) “competent evidence of a current disability or persistent or recurrent symptoms of a disability,” (2) evidence establishing an in-service “event, injury, or disease,” and (3) an indication that the disability or symptoms may be associated with service or with another service-connected disability, but (4) insufficient medical evidence of record for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). Here, the first McLendon factor has been met, as the Veteran’s medical records indicate that he has a current diagnosis of hypertension. See Hines VA Medical Center (VAMC) records, received November 2019 in CAPRI. Further, the fourth McLendon factor has been met, as no medical opinion regarding the etiology of the Veteran’s hypertension is of record. With respect to the second and third McLendon factors, the Veteran’s service treatment records (STRs) are silent as to any complaints of or treatment for hypertension. See STR-Medical. However, the Veteran has long contended that he was exposed to herbicides and radiation in service. See July 2014 Correspondence; February 2017 Correspondence. Additionally, the record shows that the Veteran is service connected for Parkinson’s disease with major neurocognitive disorder and depressive disorder, and that he was exposed to trichloroethylene (TCE) and poluchlorinated biphenyl (PCB). See December 2019 VA Medical Opinion Disability Benefits Questionnaire (DBQ); February 2020 Rating Decision. As such, the Board finds that the second and third McLendon factors have been met. Therefore, as the McLendon factors have been met, a remand is necessary to provide the Veteran with a VA examination to determine the etiology of his hypertension. In sum, the Board finds that a remand is necessary to determine whether the USS Chicago traveled within the offshore waters of the RVN as defined by the Act and to provide the Veteran with a VA examination. Accordingly, the matter is REMANDED for the following action: 1. Obtain the deck logs for the USS Chicago (CG-11) and make a determination regarding whether the ship was within offshore waters of the RVN from May 1973 to April 1975. The Act defines “offshore” as a geographical area “not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting” eleven points of latitude and longitude in a table provided. See 38 U.S.C. § 1116A(d). 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. 38 C.F.R. § 3.159(c)(2). Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records must be documented in the electronic claims file, and the Veteran must be informed if any of these records are unable to be secured. 2. After completing the above, and any additional development warranted by the record, obtain an opinion from an appropriate clinician regarding the etiology of the Veteran’s hypertension. The entire claims file must be provided to, and reviewed by, the examiner. If the examiner determines it to be necessary, an examination should be scheduled, and any indicated studies or examinations should be performed. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. The examiner is asked to: (a.) Obtain the Veteran’s lay pre-service, in-service, and post-service history, including onset and progression of symptomatology and employment. (b.) Provide the following opinions: i. Whether it is at least as like as not (i.e., a 50 percent or greater probability) that the Veteran’s hypertension had its onset during, or is otherwise related, the Veteran’s active duty service, including conceded exposure to TCE and PCB, as well as the Veteran’s asserted exposure to radiation and herbicides (if not conceded). If exposure to herbicides has not been conceded, the examiner is instructed to address the Veteran’s contention that he was exposed to herbicides through showering and drinking distilled water while serving on the USS Chicago, as well as the documents/studies the Veteran has submitted in support of his assertion. See July 2014 Correspondence. If it is determined that the Veteran was exposed to herbicides in service, the examiner is asked to consider and comment upon the November 2018 National Academy of Sciences study, titled “Veterans and Agent Orange: Update 11,” which moved hypertension from the “limited or suggestive” to “sufficient” category for association with herbicides. ii. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s hypertension is caused by his service-connected Parkinson’s disease. iii. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s hypertension underwent an incremental increase (aggravated), regardless of permanence, by his service-connected Parkinson’s disease. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 3. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. (Continued on the next page)   If any report or opinion does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, 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.