Citation Nr: 20046239 Decision Date: 07/10/20 Archive Date: 07/10/20 DOCKET NO. 14-21 055A DATE: July 10, 2020 REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a skin disability is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1968 to December 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in May 2010 by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Board most recently remanded the issues of entitlement to service connection for hypertension and a skin disability and entitlement to an increased rating for a psychiatric disability in February 2018. On February 19, 2019, the new modernized decision review system created by the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA), went into effect. Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017). This law creates a new framework for appellants to seek review of adverse decisions. Following the February 2018 remand, the RO issued a December 2019 supplemental statement of the case which denied entitlement to an increased rating for a psychiatric disability, as well as service connection for a skin disability and hypertension. In response, the Veteran’s attorney opted the issue of entitlement to an increased rating for a psychiatric disability into the modernized review system by timely submitting an appropriate form electing a review option under the AMA. 38 C.F.R. §§ 3.2400(b), (c)(2), 3.2500(a)(1)(ii), 19.2(d). However, the issues of entitlement to service connection for hypertension and a skin disability were not included as part of the opt-in, and therefore those issues remain in the legacy appeals system. Thus, the issue of entitlement to an increased rating for a psychiatric disability must be decided pursuant to the modernized review system, i.e. the AMA, and will be the subject of a separate Board decision at a later date. As noted as part of the procedural history above, the Board remanded the issues on appeal for additional development in February 2018. VA treatment records have since been associated with the file and the requested medical opinions were obtained in May 2018, July 2018, March 2019 and June 2019, including the requested opinion from a dermatologist. As such, the directives have been substantially complied with and the matter is again properly before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). In February 2018, the Board also dismissed the issues of entitlement to service connection for diabetes mellitus type II and entitlement to a 10 percent rating based on multiple noncompensable disabilities pursuant to 38 C.F.R. § 3.324, and denied entitlement to service connection for breathing difficulties. The Veteran did not appeal those determinations. Therefore, the dismissals and the denial are final, and those issues are no longer on appeal. 38 C.F.R. § 20.1100. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in October 2017. A transcript of the hearing is of record. 1. Entitlement to service connection for hypertension is remanded. VA most recently obtained an opinion concerning the etiology of the Veteran’s hypertension in May 2018. The examiner stated that it was less likely than not that the hypertension was related to the Veteran’s periods of service, to include exposure to herbicide agents and environmental hazards. The evidence of record also reflects that the Veteran was stationed at Camp Lejeune in 1968, and therefore is also presumed to have been exposed to contaminant’s in the Camp Lejeune water supply. 38 C.F.R. § 3.307(a)(7)(i). However, this in-service exposure has not been addressed in any of the opinions of record. As such, an addendum opinion is necessary. Combee v. Brown, 34 F.3d 1039, 1043–44 (Fed. Cir. 1994). Further, in support of his opinion the examiner appears to have relied on the Veteran’s account that his hypertension did not have its onset until 2009. However, private treatment records reflect treatment for hypertension as early as June 2002, with some elevated blood pressure readings prior to that date. As the examiner appears to have relied on the Veteran’s inaccurate account of his date of diagnosis of hypertension in rendering his opinion, a remand is necessary for an addendum opinion. Reonal v. Brown, 5 Vet. App. 458, 460–61 (1993). 2. Entitlement to service connection for a skin disability is remanded. VA obtained additional opinions concerning the claimed skin disability in July 2018, March 2019 and June 2019, including opinions from a dermatologist in July 2018 and March 2019. As discussed with hypertension above, while the opinions address exposure to both herbicide agents and environmental hazards, none of the opinions addressed the Veteran’s exposure to contaminants in the water supply at Camp Lejeune. 38 C.F.R. § 3.307(a)(7)(i). As such, an addendum opinion is necessary. Combee, 34 F.3d at 1043–44. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the examiner who provided the May 2018 VA hypertension examination, or another appropriate medical professional if the examiner is unavailable. The examiner should answer the following: a) Is it at least as likely as not (a fifty percent probability or greater) that the hypertension is causally related to the Veteran’s first period of service, to include exposure to either (1) herbicide agents or (2) contaminants in the water supply at Camp Lejeune? In answering this question attention is invited to a March 1975 reserve medical examination (labelled “Military Personnel Record” – pgs. 44-46 – uploaded 12/17/18). Attention is also invited to the 2018 NAS Update which upgraded the likelihood of an association between hypertension and exposure to herbicides from “limited or suggestive” evidence of an association to “sufficient” evidence of an association. b) Is it at least as likely as not (a fifty percent probability or greater) that the hypertension is causally related to the Veteran’s second period of service, to include exposure to environmental hazards in Southwest Asia? In answering this question, attention is invited to: (1) private treatment records from June 1990 to September 1993 reflecting blood pressure readings (labelled “Medical Treatment Record - Non-Government Facility” – pgs. 1-6 of 19 – uploaded 5/31/16); (2) an October 2000 private treatment record noting a blood pressure reading of 152/104 (labelled “Medical Treatment Record - Non-Government Facility” – pg. 5 of 19 – uploaded 5/31/16); and, (3) a June 2002 private treatment record noting a diagnosis of hypertension (labelled “Medical Treatment Record - Non-Government Facility” – pg. 10 of 19 – uploaded 5/31/16). A detailed rationale for the opinion must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 2. Obtain an addendum opinion from the examiner who provided the June 2019 VA addendum opinion, or another appropriate medical professional if the examiner is unavailable. The examiner should answer the following: a) Is it at least as likely as not (a fifty percent probability or greater) that the diagnosed skin disabilities are causally related to the Veteran’s first period of service, to include exposure to either (1) herbicide agents or (2) contaminants in the water supply at Camp Lejeune? In answering this question, attention is invited to: (1) an October 1969 service treatment record noting treatment for neisseria gonorrhea (labelled “Medical Treatment Record - Government Facility” – uploaded 9/30/10); (2) a March 1975 reserve medical examination (labelled “Military Personnel Record” – pgs. 44-46 – uploaded 12/17/18); and, (3) a November 1999 private treatment record noting the Veteran reported acne and residual scarring since his teenage years (labelled “Medical Treatment Record - Non-Government Facility” – pg. 6 of 10 – uploaded 2/3/11). b) Is it at least as likely as not (a fifty percent probability or greater) that the skin disabilities are causally related to the Veteran’s second period of service, to include exposure to environmental hazards? A detailed rationale for the opinion must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wendell, 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.