Citation Nr: 21065609 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 18-45 008 DATE: October 26, 2021 REMANDED Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1970 to May 1974. The matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision by a Department of Veteran's Affairs (VA) Regional Office (RO). A virtual hearing was held before the undersigned Veteran's Law Judge in June 2021; a transcript has been associated with the claims file. 1. Entitlement to service connection for hypertension is remanded. The Board finds there is a pre-decisional duty to assist error in the denial of service connection for hypertension by failing to provide the Veteran with a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). The Veteran is seeking service connection for hypertension. He asserts that his current hypertension is a result of exposure to herbicides, to include Agent Orange, while serving in Vietnam. VA must provide a medical examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease OR a service-connected disability, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. McLendon, 20 Vet. App. 79; see also 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires evidence that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. The Veteran submitted a disability benefits questionnaire in January 2018 in which the examiner confirmed the diagnosis of hypertension for the Veteran beginning in 2007. Additionally, the Veteran asserts he was exposed to Agent Orange while in service in Vietnam. A Veteran who, during active military, naval or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). The Veteran's military personnel records show he served in Vietnam from May 1971 to May 1972. The Veteran also earned a Vietnam Service Medal and a Vietnam Campaign Medal. As a result, the Veteran is presumed to have been exposed to Agent Orange while in service and the first two elements of McLendon have been satisfied. Although the Secretary of VA has not yet provided presumptive service connection for hypertension as related to exposure to herbicide agents, the National Academy of Sciences (NAS) Institute of Medicine has upgraded their findings as to an association between exposure to herbicide agents and hypertension. In the Veterans and Agent Orange: Update 2014, the NAS found that there is "limited or suggestive" evidence of an association. However, in the Update 2018, the NAS moved hypertension to the category of "sufficient" evidence of an association. The "sufficient" category indicates that there is enough epidemiologic evidence to conclude that there is a positive association between exposure to herbicide agents and hypertension. As such, there is an indication that the Veteran's hypertension may be causally related to his in-service exposure to herbicide agents despite not being listed as a disease subject to presumptive service connection under 38 C.F.R. § 3.309 (e). However, the NAS alone is not sufficient evidence to establish that the Veteran's hypertension is related to his presumed exposure to herbicide agents during service as it is merely treatise evidence. Therefore, there remains a question as to the nexus relationship between the Veteran's hypertension and his presumed exposure to herbicide agents that must be answered by a qualified medical expert. The Board is not permitted to answer such medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). As a result, all of the McLendon factor have been satisfied. Additionally, during the June 2021 hearing, the Veteran indicated he was seeking medical care for his hypertension from a private provider. These records are not currently associated with the file. The Board notes the Veteran's contention that his hypertension may also be related to the medication he is prescribed for his thyroid condition, colon cancer, and mental health condition. However, as the Veteran is not currently service connected for any disorder related to service, the Board has no duty to obtain an opinion on this issue. 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). On remand the Veteran should be afforded a VA examination to determine the nature and etiology of his hypertension as well as provided an opportunity to associate his private medical records with the claims file. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for his private provider treating hypertension. Make two requests for the authorized records from his private provider, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for a VA examination for his hypertension. The examiner must review the entire claims file to include the 2014 and 2018 NAS Updates regarding Agent Orange exposure in relation to hypertension. Provide a rationale to support the opinion: Is the Veteran's hypertension at least as likely as not related to in-service exposure to herbicide agents? The examiner is advised that a negative opinion cannot be based solely on the fact that hypertension is not on the list of diseases that are presumptively associated with exposure to herbicide agents. The rationale should include analysis of the NAS Updates in relation to the Veteran's Agent Orange exposure. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, S. Conti 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.