Citation Nr: 21066960
Decision Date: 11/03/21	Archive Date: 11/03/21

DOCKET NO. 13-23 879
DATE: November 3, 2021

REMANDED

Entitlement to service connection for a heart/cardiovascular disorder, to include ischemic heart disease and/or hypertension, claimed as a result of herbicide agent exposure, is remanded.

Entitlement to service connection for the Veteran's cause of death is remanded.

REASONS FOR REMAND

These matters were most recently before the Board of Veterans' Appeals (Board) in June 2021, when they were remanded so the Agency of Original Jurisdiction (AOJ) could obtain an addendum to a November 2019 VA examiner's opinion regarding the possibility of a link between hypertension and the Veteran's conceded herbicide agent exposure.  Specifically, the Board directed the November 2019 VA examiner to "explicitly acknowledge that a scientific consensus is not required to meet the 'at least as likely as not' standard" when discussing the likelihood that the Veteran's herbicide agent exposure led to the development of hypertension.  See Wise v. Shinseki, 26 Vet. App. 517, 532 (2014).  The Board further instructed the November 2019 VA examiner "to discuss the degree of certainty of the current state of knowledge regarding a potential causal relationship between herbicide agent exposure and hypertension, to include an acknowledgment of an uncertain state of present knowledge, if appropriate; to take cognizance of the range of epidemiologic results that have been reported, and to provide a conclusion under the 'at least as likely as not' standard based on the specific facts present in the Veteran's case."

The November 2019 VA examiner provided an addendum in August 2021.  Although the August 2021 addendum includes a new discussion of the Veteran's personal risk factors for hypertension, the November 2019 VA examiner essentially reiterated the rationale from her initial opinion and failed to comply with the Board's June 2021 remand directives to the extent that she did not explicitly acknowledge that a scientific consensus is not required to meet the "at least as likely as not" standard and did not adequately discuss the range of epidemiologic results that have been reported when addressing the current state of knowledge regarding a potential causal relationship between herbicide agent exposure and hypertension.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Given the complexity of its inquiry in this case, the Board finds an advisory opinion from an independent medical expert is warranted.  See 38 U.S.C. § 5109; 38 C.F.R. § 3.328.  As result, the AOJ must follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic.

The matters are REMANDED for the following action:

Obtain an expert opinion from an internal medicine specialist pursuant to 38 U.S.C. § 5109 that addresses the question of whether the Veteran's hypertension was at least as likely as not (50 percent probability or greater) the result of his conceded in-service exposure to herbicide agents in light of the National Academy of Sciences (NAS) finding that there is "sufficient evidence" of an association between hypertension and herbicide agent exposure.

In providing the opinion, the expert must explicitly acknowledge that a scientific consensus is not required to meet the "at least as likely as not" standard.  The expert is therefore asked to discuss the degree of certainty of the current state of knowledge regarding a potential causal relationship between herbicide agent exposure and hypertension, to include an acknowledgment of an uncertain state of present knowledge, if appropriate; to take cognizance of the range of epidemiologic results that have been reported, and to provide a conclusion under the "at least as likely as not" standard based on the specific facts present in the Veteran's case.  A generalized conclusion that a causal relationship between herbicide agent exposure and hypertension has not been established to the point of being generally accepted in the scientific community will be deemed inadequate to facilitate an analysis of the issues on appeal under the "at least as likely as not" standard.

 

 

M. HYLAND

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L. S. Kyle, 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.