Citation Nr: 20043931 Decision Date: 07/02/20 Archive Date: 07/02/20 DOCKET NO. 14-20 127A DATE: July 2, 2020 REMAND Service connection for hypertension, to include as secondary to Diabetes Mellitus type II, is remanded. REASONS FOR REMAND This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2018 the Board remanded the matter back to Agency of Original Jurisdiction (AOJ) for further development. In accordance with that July 2018 remand, the Board instructed he AOJ to obtain and associate with the claims file all outstanding VA treatment records from the Miami VA Healthcare System and all associated outpatient clinics–including but not limited to the Broward County VA OPC and the now closed Oakland Park, Florida VA Clinic–from September 1981 to June 2000. The Board instructed the AOJ that the search must include a search of archived or retired paper records and to document all efforts in pursuit of these records, as well as any negative responses, and notify the Veteran and his representative. The Board finds that the RO did not substantially comply with the July 2018 remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). More specifically, while the RO did request that the VAMC in Miami conduct a search for paper records, the response from the VAMC did not properly document its search for archived or retired paper records nor affirmatively state that such a search was negative. Instead, it appears the VAMC merely provided computerized records beginning in 2000. As such, the Board finds a Stegall remand is necessary in order to ensure substantial compliance with the July 2018 remand instructions. The prior remand asked that the Veteran complete releases authorizing VA to request various private treatment records he had referenced. The RO solicited those releases via a June 2019 letter, but the Veteran did not respond. Since it is necessary to remand the case again, the Board will give him another opportunity. However, the Veteran is advised that if he does not sign releases for these private records, or submit them himself to VA, then the evidence will be incomplete. The prior remand asked for medical opinions as to whether the Veteran’s hypertension was aggravated by his diabetes mellitus or directly related to service. That opinion was provided in October 2019. The examiner’s rationale, in part, considered the post-service treatment records and medical history of the Veteran’s diagnoses. IF additional VA records are obtained pre-dating 2000, then an addendum opinion is needed on these questions. Regardless, though, an addendum opinion is needed because of the National Academy of Science (NAS) update to the report "Veterans and Agent Orange" that was released after the Board last remanded this case. In that update, hypertension was upgraded from its previous classification in the category of "limited or suggestive" evidence of an association to herbicide agents, to the category of "sufficient" evidence of an association to herbicide agents. 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 agent exposure. The Board will take judicial notice that the 2018 update to the NAS report "Veterans and Agent Orange" exists and finds that a further medical opinion is needed to consider this report in relationship to the Veteran's medical history. The matter is REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records from: (a) Miami VA Healthcare System and all associated outpatient clinics–including but not limited to the Broward County VA OPC and the now closed Oakland Park, Florida VA Clinic–from September 1981 to June 2000. This must include a search of archived or retired paper records. All efforts to obtain these records, including the search of archived or retired paper records, must be fully documented. Document any negative responses and notify the Veteran and his representative. (b) North Florida / South Georgia VA Healthcare System (including the Gainesville and Lake City VAMCs, and all associated outpatient clinics) from June 2019 to the present. 2. After obtaining the necessary releases from the Veteran, request all outstanding medical records from the following identified private / non-VA providers: (a) Dr. Q., Fort Lauderdale medical provider who treated Veteran for hypertension (referenced in May 2000 VA primary care note); (b) unspecified private specialist to whom Veteran was referred by VA medical provider for hypertension treatment (referenced by Veteran during 2018 Board hearing when discussing hypertension treatment since leaving service); (c) all other private / non-VA providers that the Veteran may identify in the appropriate release(s). Any negative responses must be documented. If any such private treatment records are unavailable, then notify the Veteran and his representative and give them the opportunity to submit the records. If additional, relevant care is referenced in these private treatment records, then attempt to obtain records of that care as well. 3. DO NOT PROCEED WITH THE FOLLOWING INSTRUCTIONS UNTIL ALL ACTIONS AND DEVELOPMENT REQUESTED ABOVE HAVE BEEN COMPLETED TO THE EXTENT POSSIBLE. 4. Return the Veteran’s claims file to the October 2019 VA examiner (or to another VA examiner if that person is no longer available) for an addendum medical opinion. The examiner must note his or her review of the complete claims file, including this remand. Then the examiner must address the following, with full supporting rationales: (a) If, and only if, additional VA or private records pre-dating 2000 have been added to the file since the 2019 opinion was provided, then please reconsider the prior opinion in light of this new evidence and opine whether: • It is at least as likely as not (i.e.,50 percent probability or greater) that the Veteran’s current hypertension either had its onset during active service or is otherwise etiologically related active service? • it is at least as likely as not that the Veteran’s current hypertension has been aggravated (worsened beyond its natural progression) by his service-connected diabetes mellitus, type II? (b) Please opine whether it is at least as likely as not (i.e.,50 percent probability or greater) that the Veteran’s in-service exposure to Agent Orange caused his hypertension? When addressing this issue, please consider the NAS 2018 update to the report "Veterans and Agent Orange" wherein hypertension was upgraded from its previous classification in the category of "limited or suggestive" evidence of an association to herbicide agents, to the category of "sufficient" evidence of an association to herbicide agents. If any opinion requested above is not possible without resort to mere speculation, then the examiner must explain why. If the VA examiner finds that he or she cannot provide the requested opinions without another VA examination, then the RO must schedule one. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Robinson, 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.