Citation Nr: 20031216 Decision Date: 05/04/20 Archive Date: 05/04/20 DOCKET NO. 93-07 167A REMANDED Entitlement to service connection for hypertension, to include as secondary to in-service herbicide exposure or to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1970 to March 1972, to include service in the Republic of Vietnam. In March 2017, the Board denied the issue on appeal. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC). In December 2017, CAVC granted a Joint Motion for Remand (JMR) filed by counsel for both parties, vacated Board’s March 2017 decision and remanded the claim of service connection for hypertension to the Board for additional development. The Board then remanded the claim for additional development in April 2018. In the JMR, the parties agreed that the Board did not satisfy the duty to assist the Veteran when it failed to provide him with an adequate medical examination or opinion to address whether his hypertension may have been caused or aggravated by his presumed in-service exposure to herbicides. In this regard, the JMR noted that the National Academy of Science (NAS) Institute of Medicine’s Veterans and Agent Orange: Update 2012 concluded that there is “limited or suggestive” evidence of an association between exposure to Agent Orange and hypertension. Moreover, the JMR noted that statistical analysis alone is an insufficient rationale for denying direct service connection for hypertension based on herbicide exposure. See Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009). In its April 2018 remand, the Board instructed the Agency of Original Jurisdiction to afford the Veteran an examination to address whether his hypertension was caused or aggravated by his in-service herbicide exposure. The Veteran underwent a VA examination in November 2018, and the examiner opined that the Veteran’s hypertension was not related to service, in part because “VA does not recognize hypertension as a presumptive disease for Agent Orange exposed veterans.” As noted in the JMR, the fact that hypertension is not on the list of those presumed exposed to Agent Orange cannot by itself be the basis for finding a lack of nexus between hypertension and Agent Orange exposure. See Polovick, supra. Moreover, NAS recently upgraded hypertension to the “sufficient” category from “limited or suggestive,” indicating that “there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide agent exposure. See Veterans and Agent Orange: Update 11 (2018). Therefore, the Board finds that the 2018 VA medical opinion is not adequate for adjudication purposes, and another opinion must be obtained. Accordingly, the case is REMANDED for the following action: Obtain a VA medical opinion from an appropriate examiner to address the nature and etiology of the Veteran’s hypertension. The Veteran’s claims file (to include this decision) must be reviewed by the examiner. If is determined that a physical examination is necessary to provide the requested medical opinions, such should be arranged. The examiner is requested to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension began in service, was caused by service, or is otherwise related to his military service, to include his exposure to herbicides therein. In rendering this opinion, the examiner cannot use as the sole basis for the opinion the fact that hypertension is not one of the diseases on the list of diseases presumed service connected in veterans exposed to herbicides. Rather, the opinion should explain why any statistical or medical studies are found to be persuasive or unpersuasive and should address whether there are other risk factors that might be the cause of the Veteran’s hypertension or whether it manifested in an unusual manner. The examiner should specifically address the 2018 NAS update cited above indicating that there is “there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide agent exposure. (Continued on the next page)   The examiner’s report must reflect consideration of the Veteran’s entire documented medical history and assertions and all lay evidence. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. R. Fletcher, 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.