Citation Nr: 21062523 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 16-53 405A DATE: October 7, 2021 REMANDED Entitlement to service connection for hypertension to include as caused or aggravated by diabetes mellitus, type II and/or exposure to tactical herbicides such as Agent Orange is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1962 to December 1966 and from July 1968 to June 1970, including service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Board remanded the case to the RO for additional development. With apologies to the Veteran, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims for service connection. Compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268 (1998). In the prior remand, the Board directed the Veteran receive new VA opinions regarding his hypertension claim. Specifically, the Board noted a prior VA examiner did not provide a rationale as to why the Veteran's diabetes did not cause or aggravate hypertension. The Board also requested a separate opinion as to whether service caused his hypertension noting elevated blood pressure readings in service. Finally, the Board requested an opinion as to whether the Veteran's exposure to tactical herbicides such as Agent Orange caused his hypertension. As noted above, the Veteran served in Vietnam and therefore is presumed to have been exposed to tactical herbicides. Although hypertension is not a disease presumptively related to herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F. 3d 1039, 1042 (Fed. Cir. 1994). The Board specifically asked the VA examiner to comment on medical literature and treatise evidence cited by the service representative linking the onset of hypertension to herbicide exposure. In a March 2021 VA examination report, the examiner addressed whether hypertension had its onset during service as demonstrated by the blood pressure readings. The examiner stated the blood pressure readings, even if elevated, did not constitute hypertension and there are no symptoms or diagnosis of hypertension in the service treatment records. The sole fact that an injury is not documented in the Veteran's service treatment records is not dispositive evidence that such an injury did not in fact occur. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); See also Dalton v. Nicholson, 21 Vet. App. 23 (2007) (lack of documented findings is not an adequate basis for a negative opinion). Therefore, the VA examiner's report does not provide sufficient rationale regarding whether hypertension started in service. In addition, despite the Board's directives reflected in the VA examination report, the VA examiner did not discuss the effect of diabetes or the herbicide exposure including commenting on the medical literature/treatise cited by the Veteran's service representative. Accordingly, the Board has determined that new VA opinions should be obtained to address the various theories of service connection raised by the record. Before the opinions are added, ongoing medical records should also be obtained. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his hypertension claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current hypertension had its onset during service or is otherwise related to an in-service injury, event, or disease, to include exposure to herbicides such as Agent Orange. In addressing this question, the examiner should assume that the Veteran was exposed to herbicide agents during service. In offering the opinion, the examiner must consider and must discuss the literature cited in the February 2020 argument submitted by the Veteran's service representative that associates the onset of hypertension to herbicide exposure. The examiner must discuss the clinical significance of the Veteran's service treatment records that show some elevated blood pressure readings when compared with his entrance examination. The examiner must also address whether any current hypertension disability is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) service-connected diabetes. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. Any opinion offered must not be based solely on the lack of any evidence of a diagnosis of hypertension in the Veteran's service treatment records or immediately thereafter. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell P. Veldenz, 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.