Citation Nr: 21071493 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 15-12 788 DATE: November 30, 2021 REMANDED Entitlement to service connection, to include as due to herbicide exposure, for hypertension is remanded. Entitlement to service connection, to include on a secondary basis, for a heart disorder claimed as due to herbicide exposure is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1955 to May 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by a Department of Veterans Affairs Regional Office (RO). By way of history, a June 2017 Board Decision denied entitlement to service connection for a heart condition. The service connection claim for hypertension was remanded at that time. The Veteran appealed the portion of the Board's decision denying service connection for a heart condition to the U.S. Court of Appeals for Veterans Claims (Court). In a March 2018 Order, the Court vacated the Board's June 2017 Decision and remanded for readjudication in compliance with the Joint Motion for Remand (JMR). In pertinent part, the JMR found that the Board erred by failing to remand the heart condition claim to obtain a medical examination. Thereafter, the service connection claim for heart condition was remanded in a September 2018 Board Decision. In March 2020, the Board remanded the service connection claim for hypertension as the claim was inextricably intertwined with the service connection claim for a heart condition. In an April 2020 Decision, the Board denied the service connection claims on appeal. The Veteran appealed the Board's decision to the Court. In a July 2021 Order, the Court vacated the Board's April 2020 Decision and remanded for readjudication in compliance with the Joint Motion for Remand (JMR). Specifically, the JMR found that the Board erred by failing to ensure that the October 2018 medical examination substantially complied with the prior Remand instructions. In this regard, the Court noted that the examiner did not review or address certain service treatment records (STRs) and medical records, and stated that those records were not found in the record, despite them being readily available in the claims file. The Court further found the Board relied on an inadequate November 2019 VA examination in denying the service connection claim for hypertension. Hypertension and Heart Disorder The Veteran seeks entitlement to service connection for hypertension and a heart condition. With regard to the service connection claim for a heart condition, the Board notes that a in a June 2018 letter, the Veteran's treating physician noted a diagnosis for hypertensive cardiomyopathy that was "felt to be related" to his hypertension. Accordingly, both claims are intertwined. As noted above, the July 2021 JMR found that the Board erred by failing to ensure that an October 2018 medical examination substantially complied with the prior Remand instructions on the basis that the examiner did not review or address certain STRs and medical records despite those records being readily available. The Court also found the November 2019 VA hypertension examination inadequate. Specifically, the Court found the November 2019 VA examiner's rationale was based on an inaccurate factual predicate as only two STRs were noted to show elevated blood pressure readings, despite the existence of a third record also noting an elevated blood pressure reading. Accordingly, a Remand is necessary to obtain further VA examinations. The Board also notes that the Veteran asserts having developed a heart condition due to in-service exposure to herbicides. In this regard, he specifically asserts that he served aboard two ships, the USS Orleck DD-886 and the USS Theodore E. Chandler DD-717 between 1967 and 1969, and that both ships went to Vietnam. See April 2015 VA Form 9. A review of the claims file shows that VA initially developed the issue of whether the Veteran was exposed to herbicides during service. In a May 2009 memorandum, it was noted that there was no evidence to support a finding of exposure to herbicides during service in the Navy or Coast Guard. Efforts to determine whether the Veteran was exposed to herbicides did not extend beyond this memorandum. However, since issuance of the May 2009 memorandum, the Blue Water Navy Vietnam Veterans Act of 2019 (the Blue Water Act), extends the presumption of herbicide exposure to service within the offshore waters of the Republic of Vietnam. The Blue Water Act defines "offshore" as a geographical area "not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting" eleven points of latitude and longitude listed in a table. See 38 U.S.C. § 1116A(d). The Board further notes that in the Veterans and Agent Orange: Update 11 (2018), the National Academy of Sciences Institute of Medicine (NAS) found sufficient evidence of an association for hypertension and exposure to Agent Orange and other herbicides used during the Vietnam War. Specifically, hypertension has been upgraded from its previous classification in the category of "limited or suggestive" evidence of an association to the category of "sufficient" evidence of an association. 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 exposure. Accordingly, efforts should be made to determine whether the Veteran was exposed to herbicides as a result of his service aboard the USS Orleck and/or the USS Theodore E. Chandler. If herbicide exposure is conceded, then a supplemental VA examination will also be necessary to adequately adjudicate these issues on appeal. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from his VA treatment facilities, and all private treatment records not already associated with the file. If the requested records are unavailable, issue a formal finding of unavailability and notify the Veteran and allow him the opportunity to submit any medical records in his possession. 2. Undertake all necessary actions to determine whether the Veteran served in the Republic of Vietnam. Such action may include obtaining and reviewing deck logs of the USS Orleck and/or the USS Theodore E. Chandler in order to ascertain its whereabouts while the Veteran served aboard those ships, and any other development deemed appropriate. Any development on remand should address whether the USS Orleck and/or the USS Theodore E. Chandler served within the 12 nautical mile territorial sea of the Republic of Vietnam while the Veteran was stationed on those ships. If multiple requests are required to obtain all the information sought, they should be made. All requests and responses received from each contacted entity should be associated with the claims file. If the requested records are unavailable, issue a formal finding of unavailability and notify the Veteran and allow him the opportunity to submit any records in his possession. 3. After completion of steps 1 and 2 above, obtain an examination by an appropriate examiner to determine the nature and etiology of his diagnosed hypertension (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). The examiner should opine as to whether it is at least as likely as not that the Veteran's diagnosed hypertension is etiologically related to his period of service, to include as due to any conceded herbicide exposure. The examiner is asked to consider the Veteran's service treatment records showing elevated blood pressure readings, including those noted in March 1964, November 1970, November 1972, and August 1973, and an undated blood pressure of 152/106. With regard to any conceded herbicide exposure, the examiner is asked to consider the NAS 2018 conclusion that hypertension has been upgraded from its previous classification in the category of "limited or suggestive" evidence of an association to the category of "sufficient" evidence of an association. 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 exposure. The examiner should review pertinent documents in the Veteran's claims file in connection with the examination including this Remand. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 4. Then, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any diagnosed heart condition, to include hypertensive cardiomyopathy (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a diagnosed heart condition, to include hypertensive cardiomyopathy, that is etiologically related to his period of service? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a diagnosed heart condition, to include hypertensive cardiomyopathy, that was caused by his hypertension or a service-connected disability? Please explain why or why not. The examiner is asked to consider the June 2018 letter from the Veteran's physician noting a diagnosis for hypertensive cardiomyopathy felt related to his hypertension. (c) Is it at least as likely as not (50 percent or greater probability) that any diagnosed heart condition, to include hypertensive cardiomyopathy, was aggravated by his hypertension or a service-connected condition? Please explain why or why not. If the examiner finds that the disability was aggravated by the service-connected disability, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. The examiner is asked to consider the June 2018 letter from the Veteran's physician noting a diagnosis for hypertensive cardiomyopathy felt related to his hypertension. The examiner should review pertinent documents in the Veteran's claims file in connection with the examination. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. (Continued on the next page) 5. Thereafter, the RO should readjudicate the claims on appeal. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lamb, 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.