Citation Nr: 21002981 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 11-28 742 DATE: January 19, 2021 REMANDED Entitlement to service connection for hypertension as secondary to service-connected posttraumatic stress disorder (PTSD) or exposure to herbicides is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1965 to June 1968 and from September 1990 to May 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision by a Department of Veteran Affairs (VA) Regional Office. This matter was previously before the Board in January 2017, October 2017 and May 2019 for further development. This matter has a long procedural history that can be found in prior decisions. In the October 2017 decision, the Board found that since the Veteran served in Vietnam during the applicable time period, he was presumed exposed to Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Consequently, the Board directed the RO to afford the Veteran a VA examination to assess the nature and etiology of his hypertension and any relation to herbicide exposure, including Agent Orange. In the May 2019 decision, the Board acknowledged that the RO scheduled VA examinations in January 2018 and February 2018, and the Veteran failed to attend. In January 2018, the Veteran’s wife informed VA that the Veteran had been missing since December 2017 and again in March 2018, she reported him still missing. Thus, the Board directed the RO to obtain certain outstanding VA treatment records, which the RO obtained and associated with the claims file. The Board notes that the Veteran is service-connected for PTSD with a 50 percent disability rating. The Board acknowledges that the Veteran was deemed not competent and likely missed his VA examinations because of his service-connected PTSD. Consequently, the claims file does not include any medical nexus opinion assessing whether an etiological relationship exists between the Veteran’s hypertension and his presumed in-service exposure to herbicide agents, including Agent Orange. In the November 2020 appellate brief, the Veteran’s representative asserted that the Veteran’s hypertension was developed from the Veteran’s in-service herbicide exposure while in Vietnam. He relied on the National Academy of Sciences (NAS) 2018 update to the report “Veterans and Agent Orange” as support. The Board is cognizant that the NAS 2018 update to the report, “Veterans and Agent Orange,” upgraded hypertension from its previous classification in the category of “limited or suggestive” evidence of an association to herbicide agents, to the category of “sufficient” evidence of an association to herbicide agents. According to the NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide agent exposure. The Board declines to take judicial notice of the findings and conclusions found in the 2018 update to the NAS report, as this literature does not include facts of universal notoriety that are not subject to reasonable dispute. Monzingo v. Shinseki, 22 Vet. App. 97, 103 (2012). However, the Board will take judicial notice that the 2018 update to the NAS report “Veterans and Agent Orange” exists, and will request that the VA examiner consider this update when formulating a medical nexus opinion. While the Board regrets the delay, a remand is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate examiner to determine the nature and etiology of his current hypertension. In the event that the Veteran is unable to attend a VA examination, please obtain a medical opinion from an appropriate examiner. 2. Following a complete review of the electronic claims file, including the October 2017 Remand, May 2019 Remand, and this Remand, the examiner is requested to address the following: 3. Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current hypertension was caused by his active duty service, to include his presumed in-service exposure to herbicide agents, including Agent Orange? 4. The examiner is requested to consider and discuss the NAS report, “Veterans and Agent Orange,” 2018 update, which concluded that there was “sufficient” evidence of an association between the chemicals of interest in herbicide agents and hypertension. The examiner is advised that simply stating that hypertension is not on the list of diseases presumptively associated with herbicide agent exposure is not a sufficient rationale for a negative opinion. 5. A complete rationale must be provided for any and all opinions offered. All appropriate studies and consultations should be accomplished, and all clinical findings should be reported in detail. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence or information might allow for a more definitive opinion. 6. After completing the foregoing and any other development necessary, readjudicate the Veteran’s claims. 7. If any benefit sought on appeal remains denied, a Supplemental Summary of the Case (SSOC) should be furnished to the Veteran and his representative, and he and his representative should be afforded a reasonable opportunity to respond. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Agarwal, 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.