Citation Nr: 20058083 Decision Date: 09/02/20 Archive Date: 09/02/20 DOCKET NO. 15-46 365 DATE: September 2, 2020 REMANDED Entitlement to service connection for a right eye disability is remanded. Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1959 to September 1981 with service in the Republic of Vietnam and the award of the Purple Heart and the Combat Infantry Badge. In July 2017 and October 2018 the Board of Veterans’ Appeal (Board), among other things, remanded the above claims for additional development. Entitlement to service connection for a right eye disability and for hypertension are remanded. As to the claims of service connection for a right eye disability and for hypertension, the Board in July 2017 and October 2018 Remanded these issues to obtain adequate etiology opinions to include opinions as to whether either of the Veteran’s disorders were caused or aggravated by his service-connected diabetes mellitus. However, while the appeal was in Remand status the United States Court of Appeals for Veterans Claims (Court) issued a pivotal decision in in Ward v. Wilkie, 31 Vet. App. 233 (2019) in which it redefined the Veterans' Administration’s (VA’s) long standing definition of aggravation. See also 38 C.F.R. § 3.310(b). Specifically, in Ward, supra, the Court redefined the definition of aggravation to know include a temporary worsening of a disability. Tellingly, not only did the July 2017 and October 2018 Remands direct the VA examiners to apply the old definition of aggravation but the subsequent VA examiners used this old definition when providing their negative etiology opinions. See VA examinations dated in July 2017, September 2017, June 2019, November 2019, and December 2019. Therefore, the Board finds that another Remand is required to provide the Veteran with VA examinations to obtain etiology opinions that apply the new definition of aggravation. See 38 U.S.C. § 5103A(b); 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); El–Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). Also, as to the claim of service connection for hypertension, the Board notes that since the last remand the National Academy of Sciences (NAS) moved hypertension from the “limited or suggestive evidence” category to the “sufficient evidence of an association” category. See National Academy of Sciences Institute of Medicine’s Veterans and Agent Orange: Update 2018 (NAS 2018 Update). Therefore, when conducting the examination and again adjudicating the claim the examiner and the agency of original jurisdiction (AOJ) should be mindful of this 2018 NAS update. As to the claims of service connection for a right eye disability and for hypertension, when again adjudicating the claim the AOJ should be mindful of the fact that in appeals like the current one when the appellant is a “Combat Veteran” due to his award of the Purple Heart medal and Combat Infantry Badge the law provides that the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, condition, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b). Moreover, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. See Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). While the appeal is in Remand status any outstanding VA and private treatment records should also be obtained and associated with the record. See 38 U.S.C. § 5103A(b). The appeal is REMANDED for the following actions: 1. Associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran’s representative should submit any new pertinent evidence that the Board does not have. This would greatly help the Board. 3. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the etiology of his right eye disability. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, the examiner is asked to address the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that a right eye disability was caused by the Veteran’s military service to include his combat service in the Republic of Vietnam and his claimed shock wave exposure due to exploding ordinance due to this combat and his presumptive herbicide exposure. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right eye disability was caused by his service-connected diabetes mellitus. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right eye disability was aggravated by his service-connected diabetes mellitus. In providing answers to the above question the examiner should consider and discuss the service treatment records. In providing answers to the above question the examiner should consider that the Federal Circuit has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. In providing answers to the above question the examiner should consider and discuss the Veteran’s competent lay claims regarding observable symptomatology as well as his claim that he sustained a traumatic brain injury on active duty. In providing answers to the above questions, the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing the etiology opinion, the examiner should be aware of the facts that the Court held in Ward, supra, that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the etiology of his hypertension. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, the examiner is asked to address the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that hypertension was caused by the Veteran’s military service to include his service in the Republic of Vietnam and his presumptive herbicide exposure. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that hypertension manifested in the first post-service year. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension was caused by his service-connected diabetes mellitus. d. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension was aggravated by his service-connected diabetes mellitus. In providing answers to the above question the examiner should consider and discuss the service treatment records. In providing answers to the above question the examiner should consider and discuss the Veteran’s competent lay claims regarding observable symptomatology. In providing answers to the above question the examiner should consider and discuss the NAS’s 2018 update in which it moved hypertension from the “limited or suggestive evidence” category to the “sufficient evidence of an association” category. In providing answers to the above questions, the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing the etiology opinion, the examiner should be aware of the facts that the Court held in Ward, supra, that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.