Citation Nr: 21003457 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 15-17 710 DATE: January 21, 2021 REMANDED Entitlement to service connection for hypertensive vascular disease (also referred to as hypertension), to include as due to herbicide-agent exposure; and to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1969 until his honorable discharge in November 1970, with service in Vietnam. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision by the St. Paul, Minnesota, Regional Office (RO) of the United States Department of Veterans Affairs (VA). In June 2018, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ), sitting at the RO in St. Paul, Minnesota. A transcript of the hearing has been associated with the record on appeal. During the hearing, the VLJ held the record open for 60 days to allow for the submission of additional evidence; however, no additional evidence was added to the record within that time period. In a February 2019 decision, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain a VA examination and medical opinion for the Veteran’s claim of hypertension, to include theories of direct and secondary service connection, which the RO accomplished. In a September 2020 correspondence, the Board informed the Veteran that the VLJ who heard his case was no longer employed by the Board. The Veteran was offered the opportunity to request another hearing within thirty days from the date of the correspondence. The Veteran did not respond to that correspondence within thirty days, so the Board assumes the Veteran did not want another hearing. The case now returns to the Board. The Board finds that there has not been substantial compliance with the Board’s previous remand directives regarding the issue on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that currently pending before the RO is a claim for an increased raring for a left fibula disability, which was previously remanded by the Board. As that claim has yet to return to the Board, it will be the subject of a separate decision, if necessary. Entitlement to service connection for hypertensive vascular disease (also referred to as hypertension), to include as due to herbicide-agent exposure; and to include as secondary to service-connected disabilities, is remanded. Where VA provides a veteran with an examination in a service-connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A VA medical examination or opinion is adequate where it is based on the veteran’s prior medical history and examinations, an accurate factual premise, and contains clear conclusions with supporting data and a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). When an examination is provided, the examiner must support his or her conclusions with an analysis that is adequate for the Board to consider and weigh against contrary opinions. Stefl, 21 Vet. App. at 124. The Veteran was afforded a VA-contracted examination in January 2020. The examiner completed an appropriate hypertension disability benefits questionnaire (DBQ) as part of the examination, confirming the Veteran’s diagnosis of hypertension. The examiner provided an opinion as to direct and secondary service connection. The Board finds both opinions are inadequate. As to the direct-service-connection opinion, the examiner opined that the Veteran’s hypertension was less likely than not incurred in or caused by an in-service injury, event, or illness, to include exposure to herbicide agents, namely Agent Orange. As supporting rationale, the examiner reasoned that (1) the Veteran’s hypertension was diagnosed in 2011 and has been controlled by medication, and (2) his hypertension was “likely primary or essential,” and thus, “likely related to aging, diet, stress, minimal physical activity, and being overweight” rather than as due to herbicide-agent exposure. Although VA and VA-contracted examiners have no reasons-and-bases requirement, the United States Court of Appeals for Veterans Claims (CAVC) has held that an examiner may not merely list facts and conclusions with no reasoned explanation connecting the two. Nieves-Rodriguez, 22 Vet. App. at 301. But this is precisely what the examiner did here. The examiner did not explain the link between her conclusion and the Veteran’s diagnosis of hypertension in 2011 along with his associated medication usage. Nor did the examiner explain why the Veteran’s hypertension was likely related to his physical attributes and lifestyle rather than his herbicide-agent exposure. She did not explain why herbicide-agent exposure could not be an as-likely-as-not cause of the Veteran’s hypertension in addition to his physical attributes and lifestyle. Therefore, the medical opinion is inadequate. As to the secondary-service-connection opinion, the examiner opined that the Veteran’s hypertension was less likely than not caused by or aggravated by the Veteran’s service-connected disabilities of tinnitus, styloid fracture of the left fibula, or right ear hearing loss. As supporting rationale for her causation opinion, the examiner reasoned that (1) there was no medical connection between hypertension and the service-connected disabilities, and (2) his hypertension was “likely primary or essential which is likely related to aging, diet, stress, minimal physical activity, being overweight.” The examiner’s rationale is conclusory. The examiner did not explain why the Veteran’s hypertension was less likely than not caused by his service-connected disabilities. Instead, she stated two conclusions, which also are not supported by any reasoning. Nieves-Rodriguez, 22 Vet. App. at 301. Therefore, the medical opinion is inadequate. As to her opinion addressing secondary aggravation, the examiner reasoned that (1) the Veteran was diagnosed with hypertension in 2011, (2) the condition was not complicated with other conditions, and (3) his blood pressure was controlled by medication. The examiner did not explain how these findings made it less likely than not that the Veteran’s hypertension was aggravated by his service-connected disabilities. Again, an examiner may not merely list facts and conclusions with no reasoned explanation connecting the two. Nieves-Rodriguez, 22 Vet. App. at 301. Accordingly, because there is no medical examination that adequately addresses the Veteran’s claim, remand is necessary to fulfill VA’s duty to assist. 38 U.S.C. § 5103A; Stefl, 21 Vet. App. at 123. Accordingly, the matter is REMANDED for the following actions: 1. Obtain any of the Veteran’s outstanding VA medical records and associate them with the claims file. 2. After any additional records are associated with the claims file, obtain an addendum opinion from the January VA-contracted examiner, or another appropriately qualified clinician if the January 2020 examiner is unavailable, as to the onset and etiology of the Veteran’s hypertension. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide separate opinions regarding: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s hypertension had its onset in or is otherwise etiologically related to an in-service event, injury, or disease, to include exposure to herbicide agents. (b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s currently diagnosed hypertension was caused by (proximately due to or as the result of) his service-connected disabilities, to include (i) tinnitus, (ii) styloid fracture of the left fibula, or (iii) right ear hearing loss. (c.) Whether it is at least as likely as not (a 50 percent probability or more) that the Veteran’s currently diagnosed hypertension was aggravated by his service-connected disabilities, to include (i) tinnitus, (ii) styloid fracture of the left fibula, or (iii) right ear hearing loss. The examiner is advised “aggravation” means an increase in the severity of the underlying disability beyond its natural progression. In rending his or her opinion: (a.) The examiner should note review and consideration of this remand order. The examiner is informed that VA has conceded exposure to herbicide agents, to include Agent Orange, based on the Veteran’s service in Vietnam. The examiner is reminded to consider the Veteran’s lay statements regarding the nature and onset of his disability, including any evidence concerning continuity of symptomatology, as he is competent to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran’s assertion of hypertension in service or the assertion that the Veteran’s service-connected disabilities led to his currently diagnosed hypertension. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. If the examiner relies on medical treatises, the examiner must identify the treatises. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question(s). M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.