Citation Nr: 20060346 Decision Date: 09/14/20 Archive Date: 09/14/20 DOCKET NO. 10-45 043 DATE: September 14, 2020 REMANDED The issue of service connection for hypertension, to include as due to herbicide exposure and/or service-connected diabetes mellitus, type II, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1967 to November 1970. In a February 2019 decision, the Board denied service connection for hypertension. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In an April 2020 Order, the Court granted a Joint Motion for Partial Remand, vacating the Board's decision and remanding for additional proceedings. The Court indicated that the March 2016 VA examiner employed an incorrect legal standard for determining whether the Veteran’s hypertension is etiologically related to his exposure to herbicides. Pursuant to the June 2015 Board remand, the examiner was instructed to consider the latest findings from the National Academies of the Sciences Update to Agent Orange regarding whether there is a relationship between the Veteran’s hypertension and exposure to herbicides (Agent Orange). Addressing the National Academies of the Sciences (“NAS”) Update, the examiner stated that it does not present sufficient scientific evidence that conclusively demonstrates a causal relationship between the herbicide exposure and hypertension. Rather the more tenuous terms of “limited or suggestive evidence of an association” were used in describing the relationship between the two issues instead. Such wording is not consistent with the establishment of a causal connection. As pointed out by the Court, the examiner’s opinion does not reflect an understanding of the principles governing the Veteran’s claim because the examiner required scientific evidence to “conclusively demonstrate a causal relationship between the herbicide exposure and hypertension.” The March 2016 examiner further opined, The pathogenesis of essential hypertension is multifactorial and highly complex. Multiple factors modulate the blood pressure (BP) for adequate tissue perfusion and include humoral mediators, vascular reactivity, circulating blood volume, vascular caliber, blood viscosity, cardiac output, blood vessel elasticity, and neural stimulation. A possible pathogenesis of hypertension has been proposed in which multiple factors, including genetic predisposition, excess dietary salt intake, and adrenergic tone, may interact to produce hypertension. Although genetics appears to contribute to essential hypertension, the exact mechanism has not been established. As determined by the Court, this rationale is inadequate as “merely citing to a myriad of factors as potential etiologies for [the Veteran’s] hypertension does not adequately address whether his in-service herbicide exposure at least as likely as not caused his hypertension.” Furthermore, “the examiner did not provide any rationale into whether [the Veteran’s] unique medical history contributed to the onset of hypertension, but rather generically listed factors governing the onset of hypertension without applying them to [the Veteran]. Accordingly, “because the March 2016 VA examiner’s opinion was based on an improperly heightened evidentiary standard, as well as inadequate rationale provided by the examiner, this medical opinion is inadequate,” and a new opinion must be obtained on remand. The Court further referred to a September 2009 rating decision which cited to “medical evidence of hypertension, 2004 from [VA Medical Center] Ann Arbor, provided with claim.” The earliest VA treatment records, however, associated with the Veteran’s claims file are dated May 11, 2005. The Court also pointed out that the earliest VA treatment record with a diagnosis of hypertension is from April 2006. This treatment record notes “PMH” (past medical history), which could suggest hypertension was diagnosed earlier than April 2006. Accordingly, Ann Arbor VA Medical Center (VAMC) treatment records dated in 2004 must be obtained on remand. Additionally, the Court noted that a September 2014 VA treatment record identifies three sleep studies from non-VA providers stored in the VISTA Imaging System. The dates for these sleep studies are October 2, 2005, October 4, 2013, and February 6, 2014. The Court indicated that the October 2005 sleep study appears to be the earliest diagnosis of the Veteran’s sleep apnea, which is a service-connected disability. Although the October 2005 sleep study, as well as the 2013 and 2014 studies are in the claims file, the accompanying scans do not appear to be. Lastly, the Court determined that the Board failed to address that the record reasonably raises that service connection for hypertension may be as secondary to diabetes mellitus, type 2. In particular, a May 2017 VA treatment record notes the Veteran “is inquiring if his [diabetes mellitus] caused his [hypertension]. People who are diabetic are at an increased risk of [hypertension]. Accordingly, an opinion must be obtained which addresses the whether the Veteran’s hypertension is caused or aggravated by his service-connected diabetes mellitus, type II. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records, to include any from Ann Arbor VAMC from prior to May 11, 2005, and VISTA Imaging scans of the Veteran’s sleep studies into his claims file. 2. Obtain an addendum opinion from an examiner other than the March 2016 examiner to determine the nature and etiology of the Veteran’s hypertension. All necessary tests should be conducted. The claims file must be sent to the designated physician for review. The examiner should address the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension is related to his military service, to include his exposure to Agent Orange. In rendering this opinion, the physician cannot use as a basis for the opinion the fact that hypertension is not one of the diseases presumed service connected in veterans exposed to Agent Orange. The physician must specifically address the November 2018 NAS update cited above indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide agent exposure. (b) Whether the Veteran’s hypertension is at least as likely as not caused or aggravated by the Veteran’s service-connected diabetes mellitus, type II. The examiner should provide a complete rationale for any opinion set forth. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Griffith 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.