Citation Nr: 21003804 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 14-25 509 DATE: January 22, 2021 REMANDED Entitlement to service connection for hypertension, to include as due to herbicide exposure, is remanded. Introduction The Veteran served honorably on active duty in the United States Air Force during the Vietnam Era, from October 1968 to October 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing held in August 2016. A transcript of the hearing is of record. When this matter came before the Board most recently in October 2019, it was remanded for additional development, specifically, to obtain any outstanding and pertinent medical treatment records, including those of Drs. M.M. and D.D., and to afford the Veteran another VA medical examination. The additional development has been completed and the matter returns to the Board for further appellate review. While the Board regrets further delay in this matter, remand is again necessary to ensure substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). REASONS FOR REMAND Entitlement to service connection for hypertension, to include as due to herbicide exposure, is remanded. For the following reasons, the Board finds there has not been substantial compliance with the prior remand directives such that remand is again required. See Stegall, 11 Vet. App. at 271. First, the Board’s remand directed that VA obtain any outstanding records pertinent to the Veteran’s claim, including those of Drs. M.M. and D.D, whom the Veteran previously identified and provided contact information for in a May 2018 VA Form 21-4142a. The Board observes that in a December 2019 VA Form 21-4142a, the Veteran failed to include medical provider information again for Dr. D.D. and, consequently, those records were not sought by VA and without further notice to the Veteran. See 38 C.F.R. § 3.159(e). Pursuant to the Board’s October 2019 remand directives, the Veteran underwent a VA medical examination in February 2020. For the following reasons, the Board finds the VA examiner’s opinions are also not in substantial compliance with the prior remand directives and are inadequate for purposes of determining entitlement to service connection. See Stegall, 11 Vet. App. at 271; Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). First, while the VA examiner reported that the Veteran’s hypertension was diagnosed in “1972” (the year the Veteran discharged from active duty), the examiner failed to reconcile such a finding with the negative medical nexus opinion. Second, the Board’s remand directed the VA examiner to address the findings by the National Academies of Sciences, Engineering and Medicine (NAS) in Veterans and Agent Orange: Update 11 (2018) of sufficient evidence of an association between hypertension and exposure to Agent Orange and other herbicide agents. The Veteran’s exposure to herbicide agents was previously conceded. In an August 2020 addendum opinion the VA examiner acknowledged not actually reviewing such findings by noting that, “[t]he specific article by NAS regarding Agent Orange and [hypertension] is not available.” Instead, the VA examiner included a brief excerpt from a secondary online source. Further, while the VA examiner’s abbreviated statement that, “’sufficient’ is a qualitative amount and not a quantitative amount, such as a percentage, which in my opinion, is what would be needed to demonstrate a greater than 50% probability” suggests the examiner’s disagreement, without thorough rationale, with the NAS’s findings, such findings were never considered in relation to the evidence of record. Additionally, the VA examiner’s reference to “a greater than 50% probability” standard for the NAS’s findings to be of probative value in this matter is misplaced. The Board is also not persuaded by the VA examiner’s exclusive reliance upon a lack of “pertinent” STRs and no blood pressure medication until “about 18+ years after separation from active duty in 1972” to support the negative nexus opinion. Finally, the VA examiner’s reports and opinions fail to properly consider the Veteran’s lay statements, including the December 2019 statement wherein the Veteran indicated his military discharge was delayed due to elevated blood pressure and that he has experienced a “continued issue with blood pressure ever since.” Accordingly, the matter is REMANDED for the following action: 1. Undertake all appropriate development to obtain all outstanding records pertinent to the Veteran’s claim including, but not limited to, those of Dr. D.D. (see VA Form 21-4142a dated May 2018). If any requested records are not available, the file must be annotated to reflect such, and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Thereafter, schedule the Veteran for a VA examination with a physician, other than Dr. D.D.VH., possessing the necessary expertise to fully assess and provide an opinion regarding the nature, severity, and etiology of the Veteran’s hypertension. **The need for an in-person or telephonic interview of the Veteran is left to the discretion of the examiner selected to offer the requested opinion. The examiner must obtain a full history from the Veteran. It should be noted the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomology. All pertinent symptomology, including any continuity of symptomology since military service, throughout the period on appeal must be reported in detail. Based upon a review of all pertinent documents in the Veteran’s claims file, including medical records, lay statements, and the examination results, the examiner must provide the following opinions: (a.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s hypertension manifested during active duty service or to a compensable degree within one year of military discharge. (b.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s hypertension is due to, related to, or otherwise etiologically associated with an in-service injury, event, or disease including, but not limited to, conceded herbicide agent exposure. In offering the above opinion(s), the examiner must consider and discuss as necessary all pertinent lay and medical evidence of record including, but not limited to: (a.) the findings by the NAS in Veterans and Agent Orange: Update 11 (2018) indicating an association between hypertension and exposure to Agent Orange and other herbicide agents; (b.) the representative’s December 2020 argument that the Veteran’s blood pressure reading at separation of 138/88 “is considered stage 1 hypertension” under current guidelines; and (c.) the Veteran’s December 2019 statement indicating his military discharge was delayed due to elevated blood pressure and experiencing a “continued issue with blood pressure ever since.” A complete and thorough rationale for any opinion(s) expressed must be provided. If it is not possible to provide the above-requested opinion(s) without resorting to speculation, the examiner must explain whether the need to speculate is due to a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), a deficiency in the record (i.e., additional facts are required), or the examiner (i.e., does not possess the necessary knowledge or training). T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.