Citation Nr: 21004404 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 10-20 452 DATE: January 27, 2021 REMANDED Entitlement to service connection for hypertension, to include as due to herbicide agent exposure, and as secondary to service connected diabetes mellitus, is remanded. REFERRED The February 2015 and September 2016 Board decisions referred the issues of entitlement to service connection for atrial fibrillation, enlarged prostate, and soft tissue sarcoma. A June 2017 and October 2017 VA memo associated with the claims file indicated acknowledgment of these referrals; furthermore, these matters were most recently referred to the Agency of Original Jurisdiction (AOJ) in the most recent remand dated February 27, 2020. However, review of the claims file since that time does not indicate that the AOJ has undertaken any development on these service connection claims. Therefore, the Board again refers these matters back to the AOJ for adjudication. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from December 1961 to September 1965, and then again from June 1968 to June 1970. Aside from these periods of active duty, the Veteran also has extensive inactive duty within the United States Air National Guard. See, e.g.: ( First ) Form DD-214 (rec’d Feb. 24, 2015); ( Second ) Form DD-214 (rec’d Feb. 24, 2015); NGB Form 22 (rec’d July 20, 2015 ). This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that even though the Veteran initially requested a hearing before a Veterans Law Judge, see VA Form 9 ( May 17, 2010 ), he later withdrew this request, see Correspondence (rec’d Jan. 24, 2011 ). The Board proceeded accordingly, and remanded the claim on February 12, 2015, September 19, 2016, February 15, 2018, and—most recently—February 27, 2020. The Veteran’s claim has never been rendered final, nor has it ever been before the Court of Appeals for Veterans Claims for any reason. As a result, the Veteran has never been entitled to hearing as a matter of law at any time after he withdrew his request for one. Nonetheless, the Veteran appears to have been scheduled for a virtual hearing that would have taken place on December 18, 2020, see Hearing Related Correspondence ( Nov. 6, 2020 ); the Veteran did not attend this hearing. The Board now once again proceeds accordingly. Most recently, a November 2019 Supplemental Statement of the Case (SSOC) was issued, which would predate the most recent Board remand. Nevertheless, the claim was recertified to the Board in April 2020. The Board reasserts jurisdiction accordingly, but ultimately remands; without having afforded the Veteran substantial compliance with previous remand directives, it is unable to render a final determination at this time. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board sincerely regrets any additional delay that may ensue as a result of this remand. This matter is advanced on the Board’s docket on account of the Veteran’s age. 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure, and as secondary to service connected diabetes mellitus, type II is remanded. By way of background, in previous development, the AOJ conceded herbicide agent exposure based on in-country service in the Republic of Vietnam, because the Veteran’s pilot master log showed numerous points of departure and arrivals in Vietnam as an Air Force cargo plane pilot. See Rating Decision (Mar. 24, 2009). Meanwhile, the Veteran has been service connected for diabetes mellitus type II from herbicide agent exposure since May 28, 2008. See, e.g.: Rating Decision ( Nov. 18, 2019 ). The Veteran and his representative appear to concede that hypertension is not among the disorders listed in 38 C.F.R. § 3.309; however, even if service connection cannot be presumptively granted, they assert that service connection is nonetheless warranted for hypertension as secondary to diabetes. 38 C.F.R. § 3.303. See generally VSO IHP ( Oct. 13, 2020 ). Unfortunately, there has not been substantial compliance with the Board’s previous remand directive regarding service connection for hypertension, to include as due to herbicide exposure. Another remand is required. Stegall v. West, supra. The February 2018 Board remand directives had asked the examiner to consider the Veteran’s exposure to herbicide agents and the relevant medical literature regarding the effects of such exposure on the development of hypertension. The directive also asked that the examiner to explain how the Veteran’s current hypertension relates to his medical history including his age, weight, and symptoms during his service. The September 2019 VA examiner provided a negative nexus opinion based solely on no documentation of hypertension during service. The examiner did not consider the Veteran’s presumptive exposure to herbicide agents, nor his service-connected diabetes mellitus type II. Furthermore, the examiner also failed to fully address how the Veteran’s hypertension relates to his medical history including his age, weight, and symptoms during his service. Ultimately, to the extent that addendum opinions were requested by the February 2020 remand, the AOJ did not obtain any. As a result, the Veteran has not been afforded substantial compliance with the previous remand directives, thereby precluding the Board from being able to issue a final determination. See Stegall, supra. In addition, the Veteran’s representative raised the issue of secondary service connection to diabetes mellitus, type II in the October 2020 Informal Hearing Presentation. On remand, the Veteran should be asked to furnish, or to furnish an authorization to enable VA to obtain, any additional private treatment records from providers who treated him for his claimed hypertension, or else for diabetes. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After associating all outstanding relevant records with the Veteran’s claims file, the AOJ should obtain addendum opinions from a competent medical examiner, further addressing the Veteran’s hypertension. The AOJ should provide the examiner with a complete copy of the Veteran’s claims file to include this remand order. If the examiner determines it is necessary, the AOJ should schedule another in-person examination of the Veteran. The AOJ should ensure that the examiner reviews the pertinent medical evidence and lay statements before addressing the following questions: (A) Is it as least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension was caused by or aggravated by his active duty service to include periods of active duty for training, to include herbicide agent exposure? The examiner should specifically address whether the Veteran's in-service blood pressure readings represent prehypertension readings. (B) Is it as least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension was caused or aggravated by his service connected diabetes mellitus type II? The examiner should also consider the Veteran’s contention, as articulated in his representative’s October 2020 IHP, that the Veteran’s diabetes is service-connected on a presumptive basis due to herbicide agent exposure, and that hypertension is in turn secondary to diabetes. The examiner should address the Veteran’s presumptive exposure to herbicides agents and relevant medical literature regarding the effects of such exposure on the development of hypertension. Specifically, the examiner should address the literature cited in the January 2020 Informal Hearing Presentation submitted by the Veteran’s representative suggesting that prehypertension leads to hypertension. The examiner should consider the Veteran’s treatment records, which contain evidence of hypertensive responses and elevated blood pressure including during his service through the present. The examiner should explain how the Veteran’s current disability relates to his medical history including his age, weight, and symptoms during his service. The examiner should address that the Veteran’s service treatment records from the 1970s documenting hypertensive issues while the Veteran was neither morbidly obese nor of advanced age at the time. See, e.g., March 1979 SAM Internal Medicine Evaluation; April 1979 Aeromedical Evaluation Summary Sheet. (Continued on the next page)   The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, 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.