Citation Nr: 21002992 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 17-56 262A DATE: January 19, 2021 REMANDED Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from November 1965 to November 1968, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision issued by a Department of Veterans’ Affairs (VA) Regional Office (RO) that, in pertinent part, denied the Veteran’s claim of entitlement to service connection for hypertension. This case was previously before the Board in June 2019 and September 2020, where in both instances it was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. Unfortunately, the Board finds that another remand is necessary. The Veteran’s theories of entitlement include secondary service connection claims. Specifically, the Veteran contends his hypertension was either caused or aggravated by either his service-connected diabetes or his service-connected depressive disorder. For the reasons explained below, the Board finds the etiology opinions regarding the secondary service connection theories of entitlement to be inadequate. As to service connection secondary to diabetes mellitus, the October 2020 examiner found that the Veteran’s hypertension could not have been caused by his diabetes, because the hypertension pre-existed the diabetes. However, the U.S. Court of Appeals for Veterans Claims (CAVC) has specifically held that in secondary service connection claims, 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, 138 (2017) (holding that there was not a temporal requirement inherent in 38 C.F.R. § 3.310 (a) for claims for service connection on a secondary basis). Therefore, a new opinion is necessary as to whether the Veteran’s service-connected diabetes mellitus caused his current hypertension disability. As to service connection secondary to depressive disorder, the Veteran submitted a medical treatise discussing whether anxiety and depression are risk factors for hypertension. The October 2020 examiner found that the treatise was an outlier in contradiction with a larger body of evidence indicating that no such association exists, making the treatise of minimal probative value. However, the examiner stated that the Veteran’s contentions regarding the relationship between anxiety and depression and hypertension are insufficient to support the claim because the “evidence does not present a medical consensus.” This language indicates that the examiner applied a more stringent “medical consensus” burden of proof than the “relative equipoise” burden of proof required in this instance. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Therefore, a new opinion is necessary as to whether the Veteran’s service-connected depressive disorder caused or aggravated his current hypertension disability. The matter is REMANDED for the following actions: 1. Obtain a new medical opinion from an appropriate clinician as to whether it is at least as likely as not (50 probability or greater) that the Veteran’s current hypertension disability is caused by or proximately due to his service-connected diabetes mellitus. The sole fact that the Veteran’s diagnosis of hypertension preceded his diagnosis of diabetes mellitus is insufficient reasoning for finding that a casual association is absent. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. 2. Obtain a new medical opinion from an appropriate clinician as to whether it is at least as likely as not (50 probability or greater) that the Veteran’s current hypertension disability is (1) caused by or proximately due to or (2) aggravated beyond its natural progression by his service-connected depressive disorder. In providing this opinion, the examiner must address the significance of the medical treatise submitted by the Veteran discussing whether anxiety and depression are risk factors for hypertension. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Narnor, Harriyah 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.