Citation Nr: 21003868 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 16-19 268 DATE: January 25, 2021 REMANDED Entitlement to service connection for hypertension, to include as due to herbicide exposure and as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for erectile dysfunction (ED), to include as secondary to medication prescribed for a service-connected condition, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1968 to May 1970, to include service in the Republic of Vietnam (RVN). As such, exposure to herbicides, to include Agent Orange, is presumed. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision issued by a Department of Veterans Affairs (VA) regional office. These matters were previously remanded by the Board in March 2020. In February 2019, the Veteran testified via videoconference before Veterans Law Judge (VLJ) Theresa M. Catino. In July 2019, the Veteran testified before VLJ Yvette R. White. As two different VLJs heard testimony concerning the issues on appeal, a panel of three VLJs, including the two who presided over the hearings, must decide the issues. 38 U.S.C. §§ 7102(a), 7107(c). Accordingly, this decision is being rendered by a panel of three VLJs. As an initial matter, the Board notes that VA is required to consider all theories of entitlement to VA benefits, including via secondary service connection, that are either raised by the claimant or reasonably raised by the record. See Schroder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000); Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008). Here, the Veteran is service connected for PTSD and is presumed to have been exposed to herbicides, to include Agent Orange. Additionally, the Veteran has asserted that his hypertension is related to the medications he used for his PTSD. See April 2016 VA Form 9. Accordingly, the Board finds it appropriate to recharacterize the Veteran’s claim as one of entitlement to service connection for hypertension, to include as due to herbicide exposure and as secondary to service-connected PTSD. Service connection for hypertension, to include as due to herbicide exposure and as secondary to service-connected PTSD The Board regrets the delay associated with this remand, particularly as this matter has been the subject of a prior remand. However, based on a review of the evidence of record, the Board finds that another remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to obtain an adequate opinion regarding the etiology of the Veteran’s hypertension. In June 2020, the Veteran underwent a VA examination in which the examiner opined that it was less likely than not that the Veteran’s hypertension was related to his active duty service. In support of this opinion, the examiner noted that the Veteran was first diagnosed with hypertension, 40 years following separation from service. See June 2020 VA Hypertension Disability Benefits Questionnaire (DBQ); June 2020 VA Direct Medical Opinion DBQ. However, the Veteran has reported that he first received treatment for elevated blood pressure within one year following separation from service. See July 2019 Board Hearing Transcript. The Veteran is competent to report the onset and progression of symptomatology, and an opinion based on the absence of treatment records without consideration of competent lay reports is inadequate. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007). Additionally, the Veteran’s VA treatment records reveal that, as early as January 2007, the Veteran had an active diagnosis of elevated blood pressure. Further, a diagnosis of hypertension was rendered in January 2009. See Houston VA Medical Center (VAMC) records, received November 2009 in CAPRI. As such, the examiner’s opinion appears to be based, in part, on an inaccurate factual premise and, therefore, is inadequate. See Reonal v. Brown, 5 Vet. App. 458 (1993). Moreover, the examiner did not address the relationship, if any, between hypertension and the Veteran’s presumed exposure to herbicides, to include Agent Orange. As such, the examination cannot be considered adequate to the extent it ignores herbicide exposure. Additionally, the examiner opined that it was less likely as not that the Veteran’s hypertension was caused by his service-connected PTSD. In support of this opinion, the examiner, citing two articles on UpToDate, noted that while research has shown that stress due to psychological conditions can cause temporary elevations in blood pressure, there is no scientific basis for PTSD causing hypertension. See June 2020 VA Secondary Medical Opinion DBQ. However, neither cited article specifically discussed the relationship between psychological conditions and hypertension. See Stephen Textor, Evaluation of Secondary Hypertension, UpToDate, https://www.uptodate.com/contents/evaluation-of-secondary-hypertension (last visited January 16, 2021); Jan Basile, et al., Overview of Hypertension in Adults, UpToDate, https://www.uptodate.com/contents/overview-of-hypertension-in-adults#H9 (last visited January 16, 2021). Moreover, one of the cited articles specifically identifies antidepressants and antipsychotics as a major cause of hypertension. See Basile, supra. Thus, the examiner’s opinion appears to be based, in part, on an inaccurate factual premise and, therefore, is inadequate. See Reonal v. Brown, supra. Lastly, the examiner opined that it was less likely as not that the Veteran’s hypertension was aggravated by his service-connected PTSD. In support of this opinion, the examiner, citing the Jan Basile article, stated that there is no credible medical evidence to support the notion that the Veteran’s hypertension can be aggravated by PTSD. See June 2020 VA Aggravation Medical Opinion DBQ. However, this is internally inconsistent with the examiner’s note that psychological conditions can temporarily elevate blood pressure. Additionally, as noted above, the article written by Jan Basile does not specifically discuss the relationship between psychological conditions and hypertension. See Basile, supra. As such, the examiner’s opinion appears to be based, in part, on an inaccurate factual premise and, therefore, is inadequate. See Reonal v. Brown, supra. For these reasons, the Board finds the June 2020 VA examination report and etiological opinions to be inadequate for adjudication purposes. As such, a remand is necessary to obtain an adequate opinion regarding the nature and etiology of the Veteran’s hypertension. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Service connection for ED, to include as secondary to medication prescribed for a service-connected condition The Board regrets the delay associated with this remand, particularly as this matter has been the subject of a prior remand. However, as determined in the March 2020 Board remand, the evidence of record indicates that the Veteran’s ED may be related to his hypertension medications. See January 2015 Male Reproductive System Conditions DBQ. Given such, the Board finds the issue to be inextricably intertwined with the claim of entitlement to service connection for hypertension remanded herein. As such, a remand is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board notes that, in March 2020, the AOJ requested that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers that provided him with treatment. The AOJ also provided the Veteran with a VA Form 21-4142, Authorization to Disclose Information, and VA Form 21-4142a, General Release for Medical Provider Information, to allow the AOJ to obtain his medical records on his behalf. See March 2020 VA Correspondence. To date, the Veteran has not responded to the request. VA’s duty to assist is not a “one-way street,” and a Veteran seeking help cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining pertinent evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Notwithstanding the aforementioned, given that a remand is otherwise warranted, the Board finds that the AOJ should make one more attempt to identify and obtain any pertinent medical records. Accordingly, the matters are REMANDED for the following action: 1. With the Veteran’s assistance as appropriate, obtain and associate with the electronic claims file any pertinent medical records, whether VA or private, including records relating to treatment at Houston VAMC from July 2020 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 3. After completing the above, and any additional development warranted by the record, return this matter to the June 2020 examiner and obtain an addendum opinion regarding the etiology of the Veteran’s hypertension. The entire claims file must be provided to and reviewed by the examiner. If the examiner determines it to be necessary, or if the June 2020 examiner is unavailable, an examination should be scheduled and any indicated tests, studies, or evaluations should be performed. (a.) Provide the following opinions: i. Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension had its onset during, or is otherwise related to, the Veteran’s active duty service, to include presumed exposure to herbicides, including Agent Orange. ii. Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension is caused by a service-connected condition, to include PTSD and the treatment thereof. iii. Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension UNDERWENT AN INCREMENTAL INCREASE (aggravated), regardless of permanence, due to a service-connected condition, to include PTSD and the treatment thereof. • The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. MOREOVER, ANY INCREMENTAL INCREASE IN DISABILITY NEED NOT BE PERMANENT. • The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. • Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. • THE EXAMINER IS REMINDED THAT THE VETERAN IS COMPETENT TO REPORT SYMPTOMS, TREATMENT, AND INJURIES, AND THAT HIS REPORTS MUST BE TAKEN INTO ACCOUNT IN FORMULATING THE REQUESTED OPINIONS. 4. Refer the claims folder to an appropriate clinician to provide an opinion as to the etiology of the Veteran’s ED. (a.) Provide the following opinions: i. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) the Veteran’s ED was caused by a service-connected condition, to include PTSD and hypertension (if found to be related to service above), as well as any medication prescribed for a service-connected condition. ii. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) the Veteran’s ED underwent an incremental increase (aggravated), regardless of permanence, due to a service-connected condition, to include PTSD and hypertension (if found to be related to service above), as well as any medication prescribed for a service-connected condition. • The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. MOREOVER, ANY INCREMENTAL INCREASE IN DISABILITY NEED NOT BE PERMANENT. • The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. • Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. • THE EXAMINER IS REMINDED THAT THE VETERAN IS COMPETENT TO REPORT SYMPTOMS, TREATMENT, AND INJURIES, AND THAT HIS REPORTS MUST BE TAKEN INTO ACCOUNT IN FORMULATING THE REQUESTED OPINIONS. 5. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Caroline Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, 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.