Citation Nr: 21067490 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-61 677 DATE: November 4, 2021 REMANDED Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1966 to May 1969. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2015 rating decision by Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board remanded this matter to obtain a medical opinion on the probability that the Veteran's hypertension was caused by events during the Veteran's military service, to include herbicide exposure. The Board found that an opinion VA received in January 2015 from the Veteran's private doctor, R.H., cannot be accepted as probative evidence etiologically linking those disabilities to the Veteran's active service because the doctor provided no rationale to support the conclusion reached. However, the Board found it may be accepted as an indication that such a link may exist. In the December 2018 remand order, the Board also cited the National Academy of Sciences (NAS) Institute of Medicine's Veterans and Agent Orange: Update 2010, which concludes that there is "limited or suggestive" evidence of an association between exposure to herbicide agents and hypertension. The Board noted that in November 2018, hypertension was moved by NAS to the category of "sufficient" evidence of an association from its previous classification in the "limited or suggestive" category. Considering this evidence, the Board found VA must provide the Veteran with an examination of his hypertension. While VA obtained an examination in May 2019, the VA examiner found the Veteran's blood pressure readings did not meet the criterion for the VA definition of hypertension. In August 2021, the Board conceded a diagnosis of hypertension as indicated in the Veteran's VA treatment records and requested addendum opinions addressing whether the hypertension (a) had its onset in service or is otherwise related to service, including exposure herbicides or (b) manifested within one year of service separation. VA obtained another medical opinion on the hypertension claim in August 2021. The examiner provided a negative opinion. The examiner reasoned the Veteran was not noticed to have high blood pressure until decades later after discharge. The examiner found this fact itself highly suggests that the Veteran's high blood pressure was not related to herbicide exposure while in service. The examiner noted that for most adults, there is no identifiable cause of high blood pressure (primary hypertension). The examiner noted that some risk factors can put one in high risk of developing high blood pressure: such as age, family history, race, being overweight, diet, lack of exercise, smoking, et.al. The examiner noted that the Veteran has 45 pack years history of smoking cigarettes and that there are thousands of harmful chemicals in tobacco smoke. The examiner noted that smoking can increase blood pressure and gradually damage blood vessel walls. After reviewing the record, the Board finds additional development is necessary to (1) obtain copies of outstanding relevant records and (2) cure deficiencies in the medical opinions, and (3) ensure VA substantially complies with the Board's prior remand directives. Under recent precedent from the United States Court of Appeals for the Federal Circuit, the Board finds VA has constructive possession of the relevant NAS update reports it cited in its prior remand orders. See Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021). Accordingly, VA should associate copies of the 2010 and 2018 NAS update reports with the claims file. As the medical opinions in the record do not discuss the update reports, VA should also provide the reports to a medical professional and request new opinions that include some discussion of the reports and other pertinent evidence. Additionally, VA should ensure that the opinion addresses the probability hypertension manifested within one year of the Veteran's separation from active duty. See 38 C.F.R. §§ 3.307, 3.309(a). The Board REMANDS this matter for the following actions: 1. VA should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records including the National Academy of Sciences (NAS) Institute of Medicine's Veterans and Agent Orange: Update 2010 and the NAS Update 2018. VA should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran's claims file. 2. After associating all outstanding identified relevant records with the Veteran's claims file, VA should obtain an additional medical opinion regarding the Veteran's hypertension. VA should provide the medical professional with a complete copy of the claims file and ensure the medical professional's opinion addresses the following concerns: (a.) The medical professional should review the Veteran's claims file including blood pressure readings in his service treatment records and post-service treatment records. The examiner should opine whether it is at least as likely as not (an approximate balance of negative and positive evidence) that the Veteran's increase in blood pressure over time was caused by events during his active-duty military service, to include exposure to herbicides. The examiner should presume that the Veteran has experienced hypertension during the period on appeal and was exposed to herbicides (e.g. Agent Orange) during his service. The examiner should consider pertinent evidence including update reports from the National Academy of Sciences from 2010 and 2018. (b.) The medical professional should also opine whether it is at least as likely as not (an approximate balance of negative and positive evidence) that the Veteran's hypertension manifested to a compensable degree within one year of his separation from active-duty service. See 38 C.F.R. §§ 3.307, 3.309. Hypertension is compensable under the following circumstances: Diastolic pressure is predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. See 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101. (c.) The medical professional should also opine whether it is at least as likely as not (an approximate balance of negative and positive evidence) that the Veteran's service-connected disabilities (e.g. coronary artery disease, posttraumatic stress disorder, and prostate cancer) caused or aggravated the Veteran's hypertension. The examiner should consider whether the Veteran's use of medications and other treatment (e.g. radiation therapy, chemotherapy) for service-connected disabilities has caused or aggravated the hypertension as well. The aggravation does not have to be permanent as a temporary aggravation may suffice for secondary service connection. See Ward v. Wilkie, 31 Vet. App. 233 (2019). K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Duffy 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.