Citation Nr: 21001442 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 10-36 162A DATE: January 8, 2021 REMANDED Entitlement to service connection for colon cancer is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1966 to April 1968, including service in the Republic of Vietnam. He passed away in February 2015, and service connection for his cause of death was granted in a May 2015 rating decision. His surviving spouse has been substituted as the Appellant for the issues on appeal. See April 2020 notice. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The claims were previously before the Board in July 2020, when the Board reopened and remanded the claim for entitlement to service connection for hypertension, and remanded the claims for entitlement to service connection for colon cancer and entitlement to a TDIU. (The issue of entitlement to service connection for an acquired psychiatric disorder was also remanded, but subsequently granted in a September 2020 rating decision.) For the reasons discussed below, another remand is necessary. 1. Entitlement to service connection for colon cancer is remanded. In July 2020, the AOJ obtained a VA medical opinion addressing the etiology of the Veteran’s colon cancer. The examiner opined that his colon cancer was less likely than not incurred in or caused by his military service, reasoning that service treatment records were silent for a diagnosis of, or treatment for, colon cancer. The examiner further concluded that the Veteran’s colon cancer was less likely than not proximately due to or aggravated beyond its natural progression by the Veteran’s service-connected diabetes mellitus. The examiner reasoned that diabetes mellitus and colon cancer “are different condition[s] with different etiologies.” The AOJ did not substantially comply with the July 2020 remand for the following reasons. Stegall v. West, 11 Vet. App. 268, 271 (1998). First, the July 2020 VA examiner did not adequately address the medical article furnished by the Appellant in February 2020, which asserts that diabetes leads to an increased risk for subsequent development of colorectal cancer. Additionally, the examiner failed to opine as to whether the Veteran’s colon cancer was at least as likely as not etiologically related to his presumed exposure to herbicide agents while on active duty service in Vietnam. Therefore, another remand is necessary to obtain an additional medical opinion. 2. Entitlement to service connection for hypertension is remanded. In July 2020, the AOJ obtained a VA medical opinion regarding the etiology of the Veteran’s hypertension. The examiner concluded that the Veteran’s hypertension was less likely than not incurred in or caused by his military service, noting an absence of medical evidence documenting symptoms of, or a diagnosis of, hypertension. The examiner also opined that the Veteran’s hypertension was less likely than not proximately due to or aggravated beyond its natural progression by the Veteran’s service-connected coronary artery disease. The examiner reasoned that the two disorders have different etiologies, and that there was no evidence that coronary artery disease aggravated the hypertension because the last progress note showed a stable blood pressure reading and there were no emergency visits or hospitalizations due to hypertension. The Board finds that there has not been substantial compliance with the July 2020 for the following reasons. See Stegall v. West, 11 Vet. App. 268, 271 (1998). First, in the secondary service connection opinion, the examiner did not address the medical article submitted by the Appellant in February 2020, which suggests an association between coronary artery disease and hypertension. Second, in support of the opinion that the Veteran’s hypertension was less likely than not proximately due to or the result of the service-connected coronary artery disease, the primary rationale was that the hypertension diagnosis preceded the coronary artery disease diagnosis; however, for a condition to be service-connected on a secondary basis under a causation theory, the primary disability need not be service-connected, or even diagnosed, at the time the secondary condition is incurred. Frost v. Shulkin, 29 Vet. App. 131, 133-34 (2017) (holding there is no such temporal requirement inherent in 38 C.F.R. § 3.310(a)). Third, in the direct service connection opinion, the examiner failed to address whether the Veteran’s hypertension was at least as likely as not caused by his presumed exposure to herbicide agents, as instructed in the remand. Thus, another remand is warranted for an additional medical opinion. Moreover, in a November 2018 report, the National Academy of Sciences (NAS) found sufficient evidence of an association between hypertension and exposure to herbicide agents including Agent Orange. See NATIONAL ACADEMY OF SCIENCES, available at: https://www.nap.edu/catalog/25137/veterans-and-agent-orange-update-11-2018 (last accessed Jan. 6, 2021). On remand, the VA examiner must consider this highly pertinent NAS report in the medical opinion. 3. Entitlement to a TDIU is remanded. Finally, because a decision on the remanded issues of entitlement to service connection for colon cancer and entitlement to service connection for hypertension could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. See Henderson v. West, 12 Vet. App. 11, 20 (1998) (matters are “inextricably intertwined” where action on one matter could have a “significant impact” on the other). Therefore, a remand of the TDIU claim is also required. Accordingly, the matters are REMANDED for the following action: 1. Send the Veteran’s claims file to an appropriate clinician to obtain an addendum medical opinion regarding the service connection claim for colon cancer. Following a review of the claims file, the clinician should provide the following opinions: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s colon cancer was caused by or otherwise etiologically related to his active service, to include exposure to herbicide agents (notwithstanding the fact that it may not be a presumed association)? (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s colon cancer was caused (proximately due to) OR aggravated (worsened to any degree) by his service-connected diabetes mellitus? The clinician must address the 2012 medical article (received in February 2020) noting diabetes patients’ increased likelihood for developing colon cancer. The clinician must explain the rationale for all opinions and conclusions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If the clinician cannot provide an opinion without resorting to speculation, he or she should provide an explanation as to why this is and note what, if any, additional evidence would permit such an opinion to be rendered. 2. Send the Veteran’s claims file to an appropriate clinician to obtain an addendum medical opinion regarding the service connection claim for hypertension. Following a review of the claims file, the clinician should provide the following opinions: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension was caused by or otherwise etiologically related to his active service, to include exposure to herbicide agents (notwithstanding the fact that it may not be a presumed association)? Please expressly consider the November 2018 NAS Veterans and Agent Orange Update (finding sufficient evidence of an association between hypertension and exposure to herbicide agents including Agent Orange). (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension was caused (proximately due to) OR aggravated (worsened to any degree) by his service-connected coronary artery disease? The clinician must address the June 2006 medical article (received in February 2020) suggesting an association between coronary artery disease and hypertension. (Continued on the next page)   The clinician must explain the rationale for all opinions and conclusions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If the clinician cannot provide an opinion without resorting to speculation, he or she should provide an explanation as to why this is and note what, if any, additional evidence would permit such an opinion to be rendered. R. JANOFSKY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Tolbert, 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.