Citation Nr: 21064667 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 19-32 492 DATE: October 21, 2021 REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for a gum disorder, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents and as secondary to service-connected coronary artery bypass graft (CABG claimed as ischemic heart disease), is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from August 1966 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. 1. Entitlement to service connection for COPD, to include as due to exposure to herbicide agents. 2. Entitlement to service connection for a gum disorder, to include as due to exposure to herbicide agents. The Veteran contends that his COPD and gum disorder are the result of in-service exposure to herbicide agents. The Board notes that the Veteran's exposure to herbicide agents has been conceded by the RO due to his service in Vietnam during the Vietnam War. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6); October 2016 Rating Decision. COPD and gum disorder are not listed under 38 C.F.R. § 3.309 (e) for presumption of service connection due to herbicides exposure. However, the Veteran may still establish service connection on a direct basis. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). To date, the Veteran has not undergone a VA examination to determine the nature and etiology of these disorders. Consistent with the VA's duty to assist, under McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), a VA medical examination must be provided when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). The Veteran's claims for service connection meet all the McLendon elements for a VA examination. The Veteran has a current diagnosis of COPD. In addition, he testified at his Board hearing that he quit smoking about 55 years ago, that he had no in-service lung issues, and that his teeth started getting loose and falling out after his return from Vietnam. Furthermore, exposure to herbicide agents has been previously conceded by the RO. The Board notes that the Veteran has submitted a November 2020 VA medical opinion. The examiner gave a positive opinion that the COPD was primarily due to exposure to herbicide agents. However, this opinion is inadequate since there is a lack of rationale for this opinion. As such, there is insufficient competent medical evidence in the Veteran's claims file for the Board to decide these service connection claims. Therefore, these matters must be remanded for VA examinations to determine the nature and etiology of the Veteran's COPD and gum disorder. 3. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents and as secondary to service-connected CABG. The Veteran contends that his hypertension is the result of his conceded exposure to herbicide agents. In addition, he contends that his hypertension was caused or aggravated by his service connected CABG. Hypertension is not listed under 38 C.F.R. § 3.309 (e) for presumption of service connection due to herbicides exposure. However, the Veteran may still establish service connection on a direct basis. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran underwent a VA examination in September 2018. He was diagnosed with hypertension. The examiner then gave a negative opinion that the hypertension was caused or aggravated by the CABG. The examiner noted that hypertension was a separate unrelated entity entirely from CABG. In addition, the examiner found that the medical literature did not support a medical relationship between the conditions. No other opinions or rationale were provided. The VA has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist including providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159 (c)(4). 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 finds that the VA examination is inadequate for adjudicative purposes. The examiner failed to address whether the hypertension was aggravated beyond its normal progression by his service-connected CABG. In addition, the Board notes that in the National Academies of Sciences (NAS), Engineering and Medicine Veterans and Agent Orange: Update 11 (2018), the NAS found sufficient evidence of an association for hypertension and exposure to herbicide agents used during the Vietnam War. As a result, hypertension was upgraded from its previous classification in the category of "limited or suggestive" evidence of an association with exposure to herbicide agents to the category of "sufficient" evidence of an association with exposure to herbicide agents. 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 agent exposure. This NAS report is constructively before the Board. See Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021). However, the examiner did not render an opinion on direct service connection. Therefore, a remand is warranted for opinions on: (1) direct service connection that addresses the NAS Update, and (2) an aggravation opinion related to the Veteran's secondary service connection theory. The Board notes that the Veteran submitted a private medical opinion in January 2021. The examiner gave a positive opinion that the hypertension was secondary to ischemic heart disease which was presumably caused by herbicides exposure. However, this opinion is inadequate based on the lack of a rationale. As such, there is still insufficient medical evidence in the claims file to decide this service connection claim. Therefore, a remand is warranted for adequate VA opinions on both direct and secondary service connection. The matters are REMANDED for the following action: 1. Obtain updated VA and/or private treatment records to the extent possible. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. In remanding these claims, the Board makes no credibility determination at this time. 3. Once the above has been completed to the extent possible, schedule the Veteran for VA examinations with medical professionals with appropriate expertise to determine the nature and etiology of his COPD and gum disorder. The claims file should be reviewed and a notation made on the examination report that the claims file was reviewed. Based on the examination results, and a review of the record, the examiner must address the following: (a.) Identify any and all gum disorders found on examination. (b.) For each gum disorder found on examination, it is at least as likely as not (a balance of positive and negative evidence) that the gum disorder(s) is the result of military service, including in-service exposure to herbicide agents? (c,) Is it at least a likely as not that the Veteran's COPD is the result of military service, including in-service exposure to herbicide agents? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The examiner is advised that the Veteran is competent to report his medical history including symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record in formulating the requested opinions. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Once the above has been completed to the extent possible, obtain a VA medical opinion regarding the Veteran's hypertension from a medical professional with appropriate expertise. The examiner should review the Veteran's claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Whether it is at least as likely as not (a balance of positive and negative evidence) that the Veteran's hypertension is the result of military service, including in-service exposure to herbicide agents? The examiner is to address the National Academies of Sciences (NAS), Engineering and Medicine Veterans and Agent Orange: Update 11 (2018), which found sufficient evidence of an association for hypertension and exposure to herbicide agents used during the Vietnam War. (b) If the answer to (a.) is negative, whether it is at least as likely as not that the Veteran' hypertension was aggravated beyond its normal progression by the Veteran's service-connected disabilities, including but not limited to: his coronary artery bypass graft (claimed as ischemic heart disease)? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. "Aggravation" means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. The examiner is advised that the Veteran is competent to report his medical history including symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record in formulating the requested opinions. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Massey, 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.