Citation Nr: 20043843 Decision Date: 06/30/20 Archive Date: 06/30/20 DOCKET NO. 16-35 753 DATE: June 30, 2020 REMANDED Entitlement to service connection for hypertension, to include as due to in-service exposure to an herbicide agent, or in the alternative, as secondary to service-connected diabetes mellitus, type II, and/or posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for thrombosis of blood vessels of the brain, claimed as a stroke, to include as due to in-service exposure to an herbicide agent, or in the alternative, as secondary to service-connected diabetes mellitus, type II, and/or PTSD, is remanded. REASONS FOR REMAND The Veteran served honorably with the United States Army from January 1970 to February 1972. This matter comes before the Board of Veterans’ Appeals (Board) from February 2010 and January 2012 rating decisions by a Department of Veterans’ Affairs (VA) Regional Office (RO) of the Agency of Original Jurisdiction (AOJ). These matters previously remanded by the Board in April 2019. The Board’s April 2019 remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran’s appeal has been returned to the Board for further appellate consideration. Entitlement to service connection for hypertension to include herbicide exposure and secondary service connection to service-connected diabetes mellitus type II and PTSD is remanded. Although the additional delay is regrettable, the Board finds that remand is, once again, necessary. In particular, a remand is required to obtain an adequate medical opinion. In the April 2019, the Board remanded this appealed issue to obtain a medical opinion that addressed whether the Veteran’s diagnosed hypertension was at least as likely caused by herbicide exposure during service. Specifically, the examiner was asked to consider the National Academies determination upgrading hypertension to the sufficient category from the limited or suggestive category. Following the Board remand, the Veteran was afforded an examination in August 2019 to address, among other things, whether the Veteran’s hypertension was related to military service to include herbicide exposure. The examiner opined the Veteran’s hypertension was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned that the Veteran did not have a diagnosis of hypertension, and that there was no clinical evidence other than the Veteran’s lay statements that he had hypertension. Additionally, the examiner offered another opinion to include herbicide exposure. The examiner cited the opinion of the National Academies and noted hypertension is likely associated with Agent Orange. However, the examiner concluded that because there was insufficient evidence to support the claim that the Veteran has a diagnosis of hypertension, it was less likely than not that the Veteran’s claimed hypertension is related to military service. See August 2019 Medical Opinion. The Board finds that the examiner’s rationale is conclusory, unclear, and appears to be based on an inaccurate factual predicate. In particular, the examiner found the Veteran’s file had insufficient clinical evidence to support a diagnosis of hypertension. This finding is inconsistent with the medical evidence reflecting a diagnosis of hypertension which has been treated with continuous medication. See June 2009 VA examination p. 5, see also November 2010 VA examination p. 3; see also October 2016 VA examination p. 1. Given that the opinion lacks sound reasoning and appears to be based on an inaccurate predicate, the examination lacks probative value, and remand for a new opinion is required. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the probative value of a medical opinion is derived from its factually accurate, fully articulated, and sound reasoning for the conclusion); Reonal v. Brown, 5 Vet. App. 458 (1993) (noting that a medical opinion based on an inaccurate factual predicate lacks probative value). In addition, the Board notes that the Veteran has received examinations to address the Veteran’s alternate theories of service connection including secondary service connection to service-connected diabetes mellitus type II and PTSD. These opinions are also inadequate for the reasons discussed below. Thus, remand is required to obtain an adequate medical opinion. The Veteran was afforded a VA examination in November 2016 to address, among other things, whether the Veteran’s service-connected PTSD caused or aggravated his hypertension. The examiner concluded the Veteran’s hypertension is less likely than not proximately due to or the result of the Veteran’s service-connected PTSD. The examiner reasoned that, usually patients with PTSD may develop elevated blood pressure readings in response to anxiety; however, such readings are temporary and are never the sustained variety that is seen in individuals with essential hypertension. As to causation, the examiner noted that there is no medical literature which shows PTSD is neither a cause of essential hypertension nor a cause of secondary hypertension. Additionally, as to aggravation, the examiner noted that there is no medical evidence to support that hypertension has been aggravated beyond a natural progression by the Veteran’s service-connected PTSD. See November 2016 VA examination p. 2. Additionally, the examiner submitted an addendum to her opinion, further concluding that the Veteran’s PTSD medication did not aggravate or cause the Veteran’s hypertension. See November 2016 Addendum. The United States Court of Appeals for Veteran’s Claims (the Court) has firmly held that nexus opinions premised on the absence of general medical literature supporting nexus without discussing the specific facts of the case, such as those offered by the November 2016 VA examiner, are inadequate. Bailey v. O’Rourke, 30 Vet. App. 54, 60 (2018). Additionally, the Veteran was afforded a VA examination in June 2009 to address, among other things, whether the Veteran’s service-connected diabetes mellitus type II caused or aggravated the Veteran’s hypertension. The examiner concluded the Veteran’s hypertension was not a complication of his diabetes because his hypertension onset prior to his diabetes. See June 2009 VA examination p. 7. The Veteran was afforded another VA examination in October 2016 to address, among other things, whether the Veteran’s service-connected diabetes mellitus type II caused or aggravated the Veteran’s hypertension. The examiner concluded the Veteran’s hypertension was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned that by the Veteran’s own report his hypertension and diabetes was found after his stroke. As to aggravation, the examiner concluded the Veteran’s hypertension was not at least as likely as not aggravated beyond its natural progression by its diabetes. The examiner reasoned his blood pressure was controlled by medication. See October 2016 VA examination p. 2. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Here, the June 2009 and October 2016 examiner supported their negative opinions regarding a causal connection between diabetes and hypertension by stating only that the Veteran’s hypertension diagnosis predated his diabetes diagnosis. However, the timing of an initial diagnosis is not, on its own, sufficient to eliminate the possibility of a causal connection between two conditions. Frost v. Shulkin, 29 Vet. App. 131 (2017). Additionally, the October 2016 VA examiner’s opinions did not adequately consider the matters of secondary causation and aggravation. El-Amin v. Shinseki, 26 Vet. App. 136 (2013).  In light of above, the Board concludes that the VA opinions are inadequate for the purpose of readjudicating the appellant’s appeal, and thus, another remand is required. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Entitlement to service connection for thrombosis of blood vessels of the brain, claimed as a stroke, to include herbicide exposure and secondary service connection to service-connected diabetes mellitus type II and PTSD is remanded. Although the Board regrets the additional delay, further development is required prior to the adjudication of the Veteran’s claim. In particular, remand is required to obtain a medical opinion that complies with a prior Board’s remand instructions. In April 2019, the Board remanded this claim for an additional medical opinion for the Veteran’s service connection claim for a stroke may be inextricably intertwined with the Veteran’s service connection claim for hypertension. The Veteran was not afforded a VA examination to address the Veteran’s multiple theories for service connection for the Veteran’s stroke condition. Here, the Board finds that there has not been substantial compliance with its April 2019 remand. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a Board remand is not discretionary, and failure to comply with remand directives triggers a remand for corrective action. Accordingly, a remand is necessary to afford the Veteran a new medical opinion to ascertain the nature and etiology of his stroke condition. See Stegall, supra; see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Additionally, the Veteran asserted an alternative contention of secondary service connection to the Veteran’s service-connected diabetes mellitus type II and service-connected PTSD. In light of the Veteran’s assertions in this regard and the other evidence of record, the Board finds that a medical opinion addressing this theory must also be obtained on remand. The matters are REMANDED for the following actions: 1. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible). The claims file should be made available to the clinician for review. Following review of the record, the clinician should respond to the following: (a.) Is the Veteran’s hypertension at least as likely as not related to his conceded exposure to herbicides, to include herbicide exposure? *If the examiner finds that the criteria for a diagnosis of hypertension are not met during the entirety of the appeal period, this must be reconciled with the medical evidence reflecting a diagnosis of hypertension and prescription of medication for management of symptoms associated with the disability. (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current hypertension was either (1) caused by, or (2) aggravated by his service-connected diabetes mellitus type II? (c.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current hypertension was either (1) caused by, or (2) aggravated by his service-connected PTSD? In rendering such opinions, the examiner must specifically address June 2009 VA examination which includes the Veteran’s diagnosis of hypertension. See June 2009 VA examination p. 4, 5, 7. 2. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible). The claims file should be made available to the clinician for review. Following review of the record, the clinician should respond to the following: (a.) Is the Veteran’s stroke at least as likely as not related to his conceded exposure to herbicides, to include herbicide exposure? (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s stroke was either (1) caused by, or (2) aggravated by his service-connected diabetes mellitus type II? (c.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s stroke was either (1) caused by, or (2) aggravated by his service-connected PTSD? In rendering the requested opinions, the examiner must specifically address the physician’s findings of an ischemic stroke and its relationship to the Veteran’s hypertension. See June 2016 Medical Treatment Record p. 52, see also November 2010 VA examination p. 5. Scott W. Dale Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Emily A. Kotroco, Law Clerk 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.