Citation Nr: 20046828 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 12-14 373A DATE: July 13, 2020 REMANDED The matter of whether new and material evidence to reopen a claim for service connection for bilateral lower extremity arthritis, other than left knee osteoarthritis, has been received is remanded. The matter of whether new and material evidence to reopen a claim for service connection for a right knee disability has been received is remanded. The claim of entitlement to service connection for hypertension, to include as due to exposure to herbicides is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1955 to January 1977. This appeal to the Board of Veterans’ Appeals (Board) arose from a July 2011 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO), inter alia, declined to reopen the claims for service connection for bilateral lower extremity arthritis, a right knee disability, and hypertension, on the basis that that new and material evidence had not been received. The Veteran filed a notice of disagreement (NOD) later that month and the RO issued a statement of the case (SOC) in June 2012. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans’ Appeals) later in June 2012. Following the receipt of additional relevant evidence, the RO continued to deny each claim on appeal, as reflected in supplemental SOCs (SSOC) dated in April and July 2014. In March 2016, the Veteran testified during a Board video-conference hearing before the undersigned Veteran’s Law Judge; a transcript of the hearing is of record. At the time of the hearing, the undersigned advanced this appeal on the Board’s docket, pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). In July 2016, the Board, inter alia, reopened the claim for service connection for hypertension and remanded that service connection claim, along with the other requests to reopen referenced above for additional development. After accomplishing further action, the agency of original jurisdiction (AOJ) denied the remaining claims on appeal (as reflected in an April 2020 SSOC), and returned the matters to the Board. Unfortunately, the Board finds that still further AOJ action on the remaining claims on appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. With regard to the claim for service connection for hypertension, on June 2017 VA examination, the examiner diagnosed the Veteran with hypertension and opined that it was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there was no evidence of established herbicide exposure and that even if there was exposure, there is no evidence that herbicides cause hypertension. The Board finds that the opinion provided is flawed, as it is predicated on inaccurate facts. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). Here, the Board notes that subsequent to the June 2017 VA opinion, the AOJ, in a March 2020 memo, conceded exposure to herbicides based on the Veteran’s nautical service in offshore eligible waters. Therefore, contrary to the June 2017 VA opinion, the Veteran is presumed to have had exposure to herbicides during service. As for the June 2017 VA examiner’s conclusion that there is no evidence that herbicides cause hypertension, the Board notes that the National Academy of Science (NAS), in its most recent Agent Orange update, moved hypertension from limited or suggestive of an association between hypertension and herbicide exposure to sufficient evidence of an association. See Veterans and Agent Orange Update 11 (2018). This was based on a study of individuals in the Army Chemical Corps. Given the above, the Board finds that further medical etiology opinion is needed to resolve the claim of service connection for hypertension. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). To this end, on remand, the AOJ should arrange to obtain from an appropriate physician an addendum etiology opinion based on claims file review, if possible. The AOJ should only arrange for the Veteran to undergo VA examination, by an appropriate physician, if one is deemed necessary in the judgement of the physician designated to provide the addendum opinion. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and the record is complete with respect to all remaining claims on appeal, the AOJ should undertake appropriate action to obtain and associate with the electronic claims file all outstanding, pertinent records (some of which may potentially bear on the requests to reopen the previously denied claims for service connection for bilateral lower extremity arthritis, other than left knee osteoarthritis, and/or for right knee disability). As for VA medical records, the electronic claims file includes records of treatment from contains within the San Diego Vista electronic records system dated from June 2001 to June 2004 and from January 2008 to March 2016. Hence, there may be additional VA treatment records that have not yet been obtained. Therefore, the AOJ should obtain from the above-noted location all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with regard to requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to any remaining claim(s) on appeal (particularly as regards private (non-VA) medical treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1). But see also 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining claims on appeal. The matters are hereby REMANDED for the following action: 1. Obtain all outstanding VA records of evaluation and/or treatment of the Veteran contained within the San Diego Vista electronic records system, dated from June 2004 through January 2008, and since March 2016. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide additional information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to any remaining claim(s) on appeal that is not currently of record, to particularly include any private (non-VA) medical records Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from any contacted entity have been associated with the claims file, arrange to obtain from an appropriate VA physician a medical opinion addressing the etiology of the Veteran’s hypertension, based on claims file review (if possible) Only arrange for the Veteran to undergo examination, by an appropriate physician, if one is deemed necessary in the judgment of the physician designated to provide the addendum opinion. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the addendum opinion/examination report should reflect consideration of the Veteran’s documented medical history and assertions. With respect to diagnosed hypertension, the physician should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during service, or is otherwise etiologically related to service, to include conceded herbicide exposure therein. In rendering the requested opinion, the physician must consider and address all pertinent medical and other objective evidence of record, to include the recent Agent Orange update from the NAS now concluding that there is sufficient evidence of an association between hypertension and herbicide agent exposure. The physician must also consider and discuss all lay assertions, to include the Veteran\s competent as to the nature, onset and continuity of symptoms. Notably, the physician’s opinion must reflect full consideration of the above-noted information and evidence, to include that specific to this Veteran, and the physician may not rely solely or primarily on the fact that VA has not added hypertension to the list of diseases deemed etiologically related to herbicides exposure in rendering a negative etiology opinion. Complete, clearly stated rationale for the conclusions reached must be provided. 1. 5.To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hammad Rasul, 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.