Citation Nr: 21002497 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 09-29 129 DATE: January 13, 2021 REMANDED Entitlement to service connection for hypertension, to include as due to herbicide exposure, is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from November 1966 to August 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2008 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a February 2011 hearing, a transcript of which has been attached to the record. The Board initially remanded these claims to the AOJ for further development in August 2012. The Board denied the Veteran’s claim of entitlement to service connection for GERD and hypertension in an April 2016 decision. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court), which vacated the Board’s decision and granted a Joint Motion for Remand (JMR) in a December 2016 order. The Board denied these claims in a November 2017 decision, which the Veteran appealed. The Court vacated the Board’s decision and granted a JMR in a February 2019 order. The Board remanded these claims to the AOJ for further development in July 2019 and October 2020 decisions, and they have now been returned for review. Although the Board sincerely regrets further delay, another remand is necessary to afford the Veteran every possible consideration and ensure compliance with previous Board remand directives. 1. Entitlement to service connection for hypertension, to include as due to herbicide exposure, is remanded. The October 2020 Board remand acknowledged that the Veteran was presumed to have been exposed to herbicide agents during his active service and noted that The National Academy of Science Institute of Medicine’s Veterans and Agent Orange: Update 11 (2018) had upgraded evidence of an association between exposure and hypertension to “sufficient.” The Board observed that the “sufficient” category indicates that there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and herbicide exposure and remanded the claim to the AOJ for an addendum opinion discussing the nature and etiology of the Veteran’s hypertension, with consideration of this updated research. The AOJ obtained an addendum opinion in October 2020. The VA examiner indicated that the Veteran’s hypertension was less likely due to his active service and stated that hypertension “is a multifactorial problem, and that it is uncommon to be attributable to a single insult.” The only supporting rationale provided was the examiner’s note that obesity is a common comorbidity and that hypertension becomes less of a problem with weight loss. The Board observes that the October 2020 remand explicitly instructed the VA examiner authoring the addendum opinion to discuss the National Academy of Science Agent Orange Update. A Court or Board remand confers upon the Appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that the Board itself errs in failing to ensure compliance with the terms of a remand order.). As the VA examiner failed to address the National Academy of Science Agent Orange Update, the Board finds that an additional addendum opinion in compliance with the previous remand instruction is required. 2. Entitlement to service connection for GERD, to include as secondary to PTSD, is remanded. The October 2020 Board remand observed that a December 2019 VA examiner noted that the use of antidepressants can cause “reflux by inducing LES hypotension,” citing a medical article in support of his conclusion. Noting the Veteran has been prescribed antidepressants for his service-connected PTSD, the Board remanded the claim to the AOJ for an addendum opinion discussing whether the Veteran’s PTSD medications cause or aggravate his GERD, with consideration of the medical article cited by the December 2019 examiner entitled The Pathophysiology of Reflux Esophagitis. The AOJ obtained an addendum opinion in October 2020. The VA examiner stated the Veteran’s GERD “is at least as likely not proximately due to or aggravated beyond its natural progression by the medication(s) that he has been prescribed for his service-connected PTSD.” In support of this conclusion, the examiner indicated only that “GERD is not a known side effect of these medications,” and noted that it is a very common problem with advancing age, with obesity as a precipitating factor. The Board observes that the October 2020 remand explicitly instructed the examiner to address the medical article cited by the December 2019 medical examiner noting that antidepressants can cause reflux. As noted above, a Court or Board remand confers upon the Appellant the right to compliance with that order. Stegall, 11 Vet. App. at 271. As the VA examiner failed to address the Up to Date Online article: The Pathophysiology of Reflux Esophagitis, the Board finds that an additional addendum opinion in compliance with the remand instructions is required. The matters are REMANDED for the following action: 1. Obtain any outstanding treatment records and associate them with the claims file. 2. Obtain an addendum opinion from an appropriate medical examiner to determine the nature and etiology of the Veteran’s hypertension. The need for an additional examination is left to the discretion of the examiner. The examiner is asked to opine: Whether the Veteran’s hypertension is at least as likely as not (50 percent probability or greater) attributable to his conceded inservice exposure to herbicides. The examiner is specifically instructed to discuss the NAS Institute of Medicine’s Veterans and Agent Orange: Update 11 (2018) that upgraded hypertension from its previous classification category of “limited or suggestive evidence” of an association with herbicide exposure to “sufficient” evidence of an association. The examiner must provide a supporting rationale for any proffered opinion. 3. Obtain an addendum opinion from an appropriate VA examiner to determine the nature and etiology of the Veteran’s GERD. The need for an additional examination is left to the discretion of the examiner. The examiner is asked to opine: Whether the Veteran’s GERD is at least as likely as not (50 percent probability or greater) proximately due to or aggravated beyond its natural progression (a medically discernible increase in disability even if temporary) by the medications prescribed for his service-connected PTSD. The examiner is specifically instructed to address the December 2019 VA examiner’s statement that antidepressants “can cause reflux by inducing LES hypotension” as well as the medical article cited by said examiner. See Up to Date Online, The Pathophysiology of Reflux Esophagitis, Kahrilas PJ et al, (https://www.uptodate.com/contents/pathophysiology-of-reflux-esophagitis/print). The examiner must provide a supporting rationale for any proffered opinion. 4. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the issues on appeal. If the benefits sought are not granted, issue a Supplemental Statement of the Case and allow the Veteran and his representative an opportunity to respond before returning the case to the Board. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. C. Schumacher, 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.