Citation Nr: 21069041 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-45 684 DATE: November 17, 2021 REMANDED Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served active duty in the United States Navy from March 1962 to November 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a November 2015 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In February 2019, the Board remanded the issue of entitlement to service connection of hypertension to the RO for additional development. The Board subsequently denied entitlement in a November 2020 decision. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). The Court granted the parties' Joint Motion for Remand (JMR) in July 2021 and the issue has since returned to the Board for action consistent with the terms of the JMR. 1. Entitlement to service connection for hypertension is remanded. The Veteran contends he is entitled to service connection for hypertension that is related to his military service. To clarify the issues on appeal, the Board notes that the Veteran has raised two theories of entitlement that must be addressed. The Veteran first asserts direct service connection as he was exposed to herbicide agents while serving aboard the USS Richard E Kraus in Vietnam. NOD, 3/7/2016. Alternatively, the Veteran contends his hypertension is the result of his ischemic heart disease (IHD) that is presumptively service-connected due to his herbicide exposure. The basis for the July 2021 JMR was a failure to ensure satisfaction of VA's duty to assist as the Board relied on an inadequate VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, remand to the RO is necessary to obtain a medical opinion that properly addresses the Veteran's contentions and theories of entitlement and the evidence of record. The Board denied the Veteran's claim based on a November 2019 VA examination The examiner concluded the Veteran's hypertension was less likely than not related to his military service, to include herbicide exposure. However, the examiner did not provide a medical rationale in support of the negative nexus statement. The examiner improperly relied on an absence of corroborating evidence in the service treatment record to conclude there was no causal relationship. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The JMR also notes the examiner did not comply with the Board's remand instruction to consider the impact of the Veteran's conceded exposure to herbicide agents. The Board explicitly instructed, "Thus, the question here is what is the likelihood that this Veteran's hypertension is related to his herbicide exposure given his medical history, family history, risk factors, etc." The examiner did not offer discussion or rationale based on medical literature concerning the Veteran's exposure to toxic herbicides. The Board additionally notes, that while the examiner may conclude the evidence does not show presumptive service connection is warranted, full consideration of direct service connection due to conceded exposure must be made. See 38 C.F.R. § 3.309. The examiner also concluded the Veteran's hypertension was less likely than not caused or aggravated by his service connected IHD. She reasoned the Veteran has a history of risk factors including smoking, obesity, and inactive lifestyle. In formulating her opinion, the examiner impermissibly relied on an absence of medical records showing an onset of symptoms and his 1989 diagnosis. However, the Board notes this statement is not consistent with the evidence as medical records dated decades prior to the Veteran's claim show hypertension and IHD were treatment and diagnosed in the late 1980s. In any event, an absence of medical records diagnosing the Veteran's current disability cannot serve as the basis to conclude no relationship exists. See Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). Further, the Veteran submitted opinions of private physicians in support of his claim that must be addressed upon remand. A July 2017 letter from Dr. ABM notes that exposure to herbicides may have contributed to the Veteran's several cardiovascular conditions. It does not, however, offer an opinion on the Veteran's hypertension as related directly to herbicide exposure or explicitly state it is caused by his service connected IHD. MTR- Non-Gov., 7/31/2020, pg. 1/26. Dr. ABM previously submitted an April 2016 letter supporting a relationship between the Veteran's ischemic heart disease (IHD) and his exposure to herbicide agents but does not offer an opinion concerning his hypertension. MTR- Non-Gov., 4/23/2016. Similarly, a May 2019 letter from Dr. JLB does not provide an adequate nexus opinion linking the Veteran's hypertension to his herbicide exposure or service connected IHD. While the letters are probative on the issue of the Veteran's service-connected heart disease, they are not sufficient opinions regarding the etiology of the Veteran's hypertension. Upon remand, the private opinions must be considered by the medical examiner in formulating a nexus statement. As the November 2019 VA examination report and letters of the private physicians are not sufficient to adjudicate the claim, remand is necessary to obtain an addendum opinion consistent with the Court's and Board's remands. Accordingly, the matters are REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records and associate them with the claims file. 2. Forward the claims file to an appropriate clinician to obtain an addendum opinion regarding the nature and etiology of the Veteran's hypertension. Following review of this remand, the examiner is asked to provide a thorough opinion on the following: a. whether it is at least as likely as not (at least a 50 percent likelihood) that the Veteran's hypertension is related to his active duty service, to include herbicide exposure. b. whether it is at least as likely as not (at least a 50 percent likelihood) that the Veteran's IHD proximately caused the Veteran's hypertension. c. whether it is at least as likely as not (at least a 50 percent likelihood) the Veteran's IHD aggravated beyond natural progression the Veteran's hypertension. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the current disorder and service. Likewise, the mere fact that a presumption has not been established for the particular disorder at issue is not dispositive of the issue of nexus. Consideration must still be given to the exposure. Review of the file is required; however, attention is invited to the July 2017 letter from Dr. ABM that notes that exposure to herbicides may have contributed to the Veteran's several cardiovascular conditions. VBMS, document labeled Medical Treatment Record- Non-Gov., receipt date 7/31/2020, pg. 1 of 26. Also, a May 2019 letter from Dr. JLB attempting to link the Veteran's hypertension to his herbicide exposure or service connected IHD. VMBS, same document as 2017 opinion, pg. 2 of 26. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tabitha Chapman, 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.