Citation Nr: 20053686 Decision Date: 08/13/20 Archive Date: 08/13/20 DOCKET NO. 13-23 188 DATE: August 13, 2020 REMANDED Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1956 to March 1960 and April 1960 to September 1975. He served honorably in the U.S. Navy, including service in the Republic of Vietnam during the Vietnam era. The Board thanks the Veteran for his service to our country. The issue of service connection for hypertension was previously before the Board including in July 2017, when the Board denied the claim. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court). In a December 2018 memorandum decision, the Court vacated and remanded the July 2017 Board decision for readjudication. The Board remanded this case in July 2019 for additional development. The case has now returned to the Board for further appellate review. Entitlement to service connection for hypertension is remanded. A remand is warranted to ensure substantial compliance with the July 2019 Board decision. The Board errs when it fails to ensure substantial compliance with a Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the July 2019 Board remand, the Board directed the clinician to consider and address the National Academy of Science’s Agent Orange: Update 11 (2018), which upgrades hypertension from the category of “limited or suggestive” evidence of an association with herbicide exposure to the category of “sufficient” evidence. The Board additionally advised the clinician that an opinion cannot be based solely on the fact that VA does not recognize a presumptive relationship between the Veteran’s disorder and past exposure to herbicide agents. However, in a February 2020 addendum opinion, the clinician did not address the category upgrade in the opinion, but appeared to base the opinion on a perception that VA “has not quite recognized” herbicide agent exposure as a risk for hypertension. The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and non-VA treatment the Veteran has received for the disabilities on appeal. Please ask the Veteran to provide the releases necessary for VA to secure private treatment records. 2. After the action requested in paragraph 1 is complete, please refer the claim to an appropriate clinician for an addendum opinion as to the nature and etiology of the Veteran’s hypertension. The Veteran’s claims-file must be made available to and reviewed by the clinician. The clinician should provide an opinion as to whether the Veteran’s hypertension is at least as likely as not (a 50 percent or greater probability) related to exposure to an herbicide agent during service or otherwise related to service. The clinician is advised that the sole basis of a negative opinion cannot be that hypertension is not on the list of diseases subject to presumptive service connection based on exposure to herbicide agents. The opinion and associated rationale needs to address the likelihood that THIS Veteran’s hypertension is related to herbicide exposure given his individual medical history, family history, risk factors, etc. In addressing this question, the clinician must consider and address the National Academy of Science’s Agent Orange: Update 11 (2018), which upgrades hypertension from the category of “limited or suggestive” evidence of an association with herbicide exposure to the category of “sufficient” evidence. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician should take into consideration that the Veteran is competent to report in service and post-service symptom experiences; other witnesses are competent to report observable symptoms. If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Vashaw, 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.