Citation Nr: 21000375 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 13-31 506A DATE: January 5, 2021 REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected coronary artery disease (CAD), peripheral artery disease (PAD), and/or type II diabetes mellitus (diabetes), and to include as due to exposure to herbicide agents, is remanded. REASONS FOR REMAND The Veteran had active service from March 1968 to December 1971, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Board notes that the June 2020 Remand stated that the rating decision on appeal was from September 2013. However, after further review, the Board now finds that the rating decision on appeal is from May 2012, noting that a subsequent notification letter was sent the next month to the Veteran relating the same. Additionally, the Board notes that this finding is more favorable to the Veteran and, as his notice of disagreement was filed within a year of that rating decision, he is not prejudiced in this regard. In March 2019, the Board remanded the issues of service connection for a heart disability, back disability, and PAD of the left lower extremity. It is noted that, during remand status, a May 2020 rating decision granted the claims for service connection for a heart disability, back disability, and PAD of the left lower extremity. As the RO granted in full the benefit sought by the Veteran, there is no remaining allegation of error of fact or law for appellate consideration as to those issues. See Grantham v. Brown,114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). In June 2020, the Board again remanded the remaining issue on appeal. The Board regrets further delay, but another remanded is required. Specifically, another medical opinion must be obtained as the September 2020 VA medical opinion, with respect to secondary aggravation, is inadequate. In its June 2020 Remand, the Board requested an opinion concerning whether the Veteran’s hypertension was related to service, or was caused or aggravated by service-connected diabetes. Regarding aggravation, the examination request defined it as being “permanently worsened beyond the normal progression of that disease.” The Court has recently held, however, that this “permanent worsening” standard is invalid. Ward v. Wilkie, 31 Vet. App. 233, 240 (2019). As such, the examiner is advised that his or her inquiry is not limited to the definition of aggravation as a permanent worsening of the condition beyond its natural progression. Thus, the 2020 VA medical opinion, with respect to aggravation, is inadequate for failing to evaluate aggravation under the appropriate legal standard. VA has a well-established duty to maximize a claimant’s benefits. See Morgan v. Wilkie, 31 Vet. App. 162 (2019). Although the issue of entitlement to service connection for hypertension as secondary to either CAD or PAD was not claimed, the Board finds that the record has raised the issue due to these disabilities now being service-connected. Id. As such, a remand is needed to address these issues and McLendon is triggered, thus warranting a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). And finally, the Board notes that there has not been an opinion rendered on the relationship between the Veteran’s hypertension and herbicide agent exposure, triggering McLendon. Id. Regarding the relationship between hypertension and herbicide agent exposure, the Board notes that in November 2018, the National Academy of Sciences upgraded hypertension to the “sufficient” category from “limited or suggestive,” indicating that “there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. See https://www.nationalacademies.org/news/2018/11/vietnam-veterans-and-agent-orange-exposure-new-report. The Board also notes that an article in the November 2016 Journal of Occupational and Environmental Medicine entitled Herbicide Exposure, Vietnam Service, and Hypertension Risk in Army Chemical Corps Veterans, suggests that herbicide exposure history and Vietnam service status were significantly associated with hypertension risk. See https://www.publichealth.va.gov/epidemiology/studies/vietnam-army-chemical-corps.asp. In light of the foregoing, the Board finds that this issue must be remanded for an addendum opinion. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then obtain an addendum opinion from an examiner, other than the June 2017, December 2019, and September 2020 VA examiners, to address the following: (a.) Is it at least as likely as not that the Veteran’s hypertension is related to service, to specifically include exposure to herbicide agents (i.e. Agent Orange)? Your opinion should include consideration and discussion of the Veteran’s presumed exposure to herbicide agents, the IOM studies, and the November 2016 article regarding Agent Orange and hypertension referenced above. (b.) Is it at least as likely as not that the Veteran’s hypertension was caused by his service-connected CAD and/or PAD? (c.) Is it at least as likely as not that the Veteran’s hypertension was aggravated (i.e. worsened in degree of severity) by his service-connected CAD/PAD? Please note that the worsening/aggravation need not be permanent. (d.) Is it at least as likely as not that Veteran’s hypertension was caused by his service-connected diabetes? (e.) Is it as least as likely as not that Veteran’s hypertension was aggravated (i.e. worsened in degree of severity) by his service-connected diabetes? Please note that the worsening/aggravation need not be permanent. (Continued on the next page)   Please also note there is no temporal requirement that the primary condition (CAD/PAD/diabetes) be service-connected, or even diagnosed, at the time the secondary condition (hypertension) is incurred, and reliance on this fact will render the opinion inadequate. A comprehensive rationale must be furnished for this opinion. If the examiner is unable to provide a medical opinion, then he or she should provide a rationale for that conclusion, to specifically include a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. E. Blowers Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. J. Rogers, 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.