Citation Nr: 21061434 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 15-39 882 DATE: October 4, 2021 REMANDED Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from November 1967 to November 1969, to include service in Vietnam. His decorations include the National Defense Service Medal and the Vietnam Campaign Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Washington, D.C. The issue on appeal was previously before the Board in July 2018, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. In September 2020, the Board, in pertinent part, denied the Veteran's claim for service connection for hypertension. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In June 2021, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board's decision insofar as it denied service connection for hypertension and remanding that matter for readjudication. Entitlement to service connection for hypertension is remanded. In the JMPR filed with the Court, the parties to the appeal agreed that the Board erred when it failed to consider whether the National Academy of Sciences (NAS) Update 2018, which recognizes "sufficient evidence of an association" between hypertension and Agent Orange, was constructively before it. Hypertension is not currently among the diseases which have been presumptively linked to herbicide exposure under 38 C.F.R. § 3.309(e). However, NAS has upgraded the likelihood of an association between hypertension and exposure to herbicides, to include Agent Orange, from "limited or suggestive" evidence of an association to "sufficient" evidence of an association. See Veterans and Agent Orange: Update 11 (2018) (available at http://nationalacademies.org/hmd/reports/ 2018/veterans-and-agent-orange-update-2018.aspx). This NAS report is constructively before the Board. See Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021). Thus far, no medical opinion has been obtained as to whether the Veteran's hypertension is related to his presumed in-service exposure to herbicide agents. In light of the evidence constructively before VA indicating that his hypertension may be associated with service, a medical opinion is required. See, e.g., McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (holding, in part, that an examination may be required under the provisions of 38 C.F.R. § 3.159(c)(4) if the record on appeal contains evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits). This matter is REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. Arrange to have a clinician with appropriate experience review the claims file for purposes of providing an opinion with respect to the etiology of the Veteran's hypertension. The examiner is requested to review all pertinent records associated with the claims file, including post-service medical records and the Veteran's lay assertions. After reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has hypertension that had its onset in, or is otherwise attributable to, his period of active service, to include his conceded in-service exposure to herbicides. In so doing, the examiner must specifically address the November 2018 Veterans and Agent Orange: Update 11, citing a NAS report indicating that there is "sufficient" evidence of an association between hypertension and herbicide exposure. 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. A complete medical rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, 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.