Citation Nr: 21003990 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 15-45 163 DATE: January 25, 2021 REMANDED Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1970 to December 1971. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in September 2018. A transcript of the hearing was prepared and associated with the claims file. In May 2019, the Board of Veterans’ Appeals (Board) remanded the claim to the Agency of Original Jurisdiction (AOJ) to obtain outstanding VA medical records and schedule the Veteran for a VA examination in connection with his hypertension claim. As discussed further below, there has not been substantial compliance with prior remand directives, and an additional remand is required. Entitlement to service connection for hypertension Unfortunately, the Veteran’s claim of entitlement to service connection for hypertension must again be remanded to comply with remand directives articulated by the Board in May 2019 regarding an adequate medical opinion. See Stegall v. West, 11 Vet. App. 268 (1998). VA’s duty to assist includes obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d). Furthermore, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board’s May 2019 remand instructions specifically directed that the Veteran was to be afforded a VA examination to determine the nature and etiology of his hypertension. The examiner was directed to address the etiology of the Veteran’s hypertension, including whether it is a result of his presumed exposure to herbicides during active service in Vietnam. In providing the requested opinion, the VA examiner was asked to specifically consider and discuss relevant evidence of record, including the 2008 NAS update which concluded that there was “limited or suggestive evidence of a relationship” between hypertension and herbicide exposure. In July 2020, a VA examiner opined that the Veteran’s hypertension was not related to active duty, including herbicide exposure. The examiner’s rationale was that to date, the NAS study has not resulted in a hypertension diagnosis being a compensable issue related to herbicide exposure during service. The Board finds that the above opinion as to whether hypertension was related to herbicide exposure is inadequate to adjudicate the Veteran’s claim, as it does not substantially comply with its May 2019 remand directives. Notably, the rationale provided by the VA examiner is not well supported, and moreover, the examiner’s opinion did not consider and discuss the relevant evidence of record as requested, including a discussion of the NAS study and its finding of a positive association between hypertension and exposure to tactical herbicides. As such, an adequate addendum medical opinion must again be sought upon remand. The matters are REMANDED for the following action: Return the file to the examiner who provided the November 2019 opinion and July 2020 addendum opinion for an additional addendum opinion regarding the Veteran’s claim service connection for hypertension. The examiner is informed of the following facts, which are essentially the same set of facts previously provided with citations to the record, when applicable: • The Veteran is claiming that his hypertension is possibly related to herbicide exposure. • The Veteran served on active duty from April 1970 to December 1971. He served in Vietnam and thus is presumed to have been exposed to herbicides. • In the December 1969 Report of Medical Examination performed at induction, the Veteran was found to have normal clinical evaluations of his heart and vascular system, with a blood pressure of 130/86. In the corresponding Report of Medical History, the Veteran reported a positive history of pain or pressure in his chest. See VBMS entry with document type, “STR - Medical,” receipt date 12/20/2005, at pages 18-20. • At the October 1971 Report of Medical Examination performed at separation, the Veteran was found to have normal clinical evaluations of his heart and vascular system, with a blood pressure of 118/80. In the corresponding Report of Medical History, the Veteran reported a positive history of pain or pressure in his chest and shortness of breath, while denying a history of high or low blood pressure. See VBMS entry with document type, “STR - Medical,” receipt date 12/20/2005, at pages 25-27. • In a January 2000 VA treatment record, the Veteran was noted to have a borderline blood pressure reading. See VBMS entry with document type, “Medical Treatment Record - Government Facility,” receipt date 09/25/2010, with “TAB D” in the subject field, at page 29. • VA treatment records show that hypertension has been listed on the Veteran’s “Problem List” within the VA system since February 2002. See VBMS entry with document type, “Medical Treatment Record - Government Facility,” receipt date 05/04/2010, at page 3. • VA finds as fact that the Veteran has a diagnosis of hypertension. • In a 2018 update, the National Academy of Science (NAS) Institute of Medicine has found “limited or suggestive” evidence of a relationship between exposure to herbicide agents and the development of hypertension. According to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. See https://www.nap.edu/read/25137/chapter/1. Hypertension is discussed beginning on page 487 , which page number may be entered where it says, “Page # of 716” at the top where it says, “Contents.” (Enter page number where “#” is shown.). • In the July 2020 addendum opinion, the examiner concluded that the Veteran’s hypertension could not be related to herbicide exposure because “to date the NAS study has not resulted in [hypertension diagnosis] being a compensatable issue related to herbicide exposure.” See VBMS entry with document type, “C&P Exam,” receipt date 07/20/2020. • The examiner is informed that while hypertension is not presumptively associated with herbicide exposure under VA regulations, such cannot serve as the sole basis for a negative opinion. • The examiner’s review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. The examiner is asked to answer the following question: Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s hypertension is related to his presumed exposure to herbicides in Vietnam? In rendering this particular opinion, the examiner must specifically consider and discuss the 2018 NAS update. To reiterate, while hypertension is not presumptively associated with herbicide exposure under VA regulations, such cannot serve as the sole basis for a negative opinion. The examiner is asked to provide a rationale for all conclusions reached with reference to relevant evidence of record and/or medical principles, as appropriate. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Griffin, 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.