Citation Nr: 21071727 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-05 667A DATE: December 1, 2021 REMANDED Entitlement to service connection for ischemic heart disease to include as secondary to herbicide exposure for substitution purposes is remanded. Entitlement to service connection for hypertension to include as secondary to herbicide exposure for substitution purposes is remanded. Entitlement to service connection for a cerebral vascular accident (CVA), claimed as a stroke, to include as secondary to herbicide exposure for substitution purposes is remanded. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) for substitution purposes is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1960 to October 1980, and died in June 2014. The Appellant is the Veteran's surviving spouse. In a September 2019 administrative decision, the RO determined that the Appellant met the basic eligibility for substitution in this appeal. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2013 Rating Decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008), created a new Section, 5121A, under Chapter 38 of the United States Code relating to substitution in case of death of a claimant who dies on or after October 10, 2008. As provided for in the statute, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title." 38 U.S.C. § 5121A. As noted above, the Veteran passed away in June 2014. The Appellant filed an application for dependency and indemnity compensation (DIC) in July 2014, which constituted an application for substitution. In December 2014, the RO found that the Appellant was entitled to service-connected survivor benefits/DIC benefits. The Board notes that the issues before the Board here have been recharacterized as for substitution purposes. When a properly qualified substitute claimant "continues the pending claim in the footsteps of the veteran" after his or her death, additional development of the record may be undertaken if that is deemed appropriate and/or necessary in order to adequately adjudicate the merits of the claim. Unlike accrued benefits claims, the record is not closed on the date of death of the original claimant, but rather, remains open for the submission and development of any pertinent, additional evidence. Thus, it is to the Appellant's advantage to have her claims adjudicated as a substitute claimant pursuant to 38 U.S.C. § 5121A, rather than as they were originally adjudicated. The Appellant seeks entitlement to service connection for ischemic heart disease, hypertension, CVA, and an acquired psychiatric disorder. Unfortunately, the Board finds that additional development is necessary before these claims can be adjudicated on the merits. These issues were previously before the Board in October 2019, at which time the Board emphasized that the Veteran's service treatment records contained multiple instances of elevated blood pressure readings, as evidenced by an April 1962 blood pressure reading of 136/88 mmHg and a May 1979 blood pressure reading of 120/90 mmHg. In addition, the Board notes additional blood pressure readings of 130/80 mmHg in May 1976 and 128/86 mmHg in March 1980. Following a January 2017 records review, a VA examiner concluded that it was less likely than not that the Veteran's service-connected conditions caused, contributed to, or aggravated the claimed disabilities listed due to lack of any identifiable medical relationship. However, the Veteran did not undergo a VA examination specifically in conjunction with his claimed hypertension disability on a direct basis and there was no opinion of record addressing this possible relationship. As such, the Board found that a VA medical opinion was required to address whether the Veteran had a hypertension disability that was related to his active duty service. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c) (4). Specifically, the Board's Remand requested that the examiner provide an opinion as to whether it was at least as likely as not that hypertension initially manifested in or was otherwise etiologically related to the Veteran's service, to include the elevated blood pressure readings documented in service. All opinions expressed by the examiner were to be accompanied by a complete rationale. Pursuant to the Board's October 2019 Remand directives, a VA opinion was obtained in November 2020. The examiner opined that the Veteran's hypertension was less likely than not incurred in or caused by an in-service injury, event, or illness. In support of this opinion, the examiner simply stated that: HTN is less likely than not incurred from BP during service based on medical records containing "report of medical exam in 4/27/1962 of normal BP (136/88), exam on 5/5/1976 of normal BP (130/80) and clinical note in 5/3/1979 of BP 120/90, and BP 128/86 in 3/1980. There was no evidence of a chronic elevation of BP throughout medical records until 3/2007 reporting elevated BP that was found to be residual of stroke due to occlusion of internal carotid arteries and not prior to onset of stroke. Therefore, claimant's HTN was not due to active service BP at all. To suggest otherwise is purely speculative without merit. The Board finds that this opinion is inadequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Significantly, the examiner's opinion did not appear to distinguish between elevated blood pressure readings and blood pressure readings which qualify as hypertension. For the purposes of 38 C.F.R. § 4.104, the term hypertension means that the diastolic blood pressure is predominately 90 mmHg or greater and isolated systolic hypertension means that the systolic blood pressure is predominately 160 mmHg or greater with a diastolic blood pressure of less than 90 mmHg. However, the Board also recognizes that blood pressure readings consistently ranging from 120 to 129 mmHg systolic and less than 80 mmHg diastolic, as well as blood pressure readings consistently ranging from 130 to 139 mmHg systolic or ranging from 80 to 89 mmHg diastolic, are considered elevated. See, e.g., "Prevention, Detection, Evaluation, and Treatment of High Blood Pressure," National Institute of Health, National Heart Lung, and Blood Institute (2003). Hence, in its October 2019 Remand, the Board explicitly asked the VA examiner to discuss the likelihood that the elevated blood pressure readings documented in service constituted an initial manifestation of hypertension. Although the examiner cited in-service blood pressure readings of 136/88 mmHg, 130/80 mmHg, 120/90 mmHg, and 128/86 mmHg (all of which would fall under the "elevated" blood pressure reading criteria), the examiner still concluded that there was no evidence of a chronic elevation of blood pressure in the Veteran's medical records until March 2007. Crucially, the examiner did not explain why the four in-service elevated blood pressure readings did not constitute evidence of chronic elevation of blood pressure. As such, another VA opinion must be obtained which adequately addresses the Board's inquiries. Additionally, with respect to the issues of entitlement to service connection for ischemic heart disease and a CVA, the Board's October 2019 Remand noted that these disabilities were potentially related to the Veteran's claimed hypertension disability due to the nature of each of these disabilities. As a result, Board finds that further development and adjudication of the service connection claim for a hypertension disability may provide evidence in support of the claims for ischemic heart disease and a CVA. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991). As such, Board adjudication of the service connection claims for ischemic heart disease and a CVA at this time would be premature. Similarly, the Board's October 2019 Remand also noted that upon a January 2017 records review, a VA examiner indicated that the Veteran had a diagnosis of depressive disorder which was concurrent with his stroke rather than with his service-connected conditions. As a result, the Board found that the claim for an acquired psychiatric disability to include PTSD was inextricably intertwined with the claim of entitlement to service connection for a CVA which was being remanded. See, Henderson, supra. The Board again concludes that it would be inappropriate at this juncture to enter a final determination on the issue of entitlement to service connection for an acquired psychiatric disability to include PTSD until the CVA claim is also adjudicated. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate examiner to determine the nature and etiology of the Veteran's hypertension disability. Based on a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that hypertension initially manifested in or was otherwise etiologically related to the Veteran's period of active duty service from October 1960 to October 1980. All opinions expressed by the examiner must be accompanied by a complete rationale. In providing the above opinion, the examiner must acknowledge and discuss the following in-service blood pressure readings: 136/88 mmHg in April 1962, 130/80 mmHg in May 1976, 120/90 mmHg in May 1979, and 128/86 mmHg in March 1980. If the examiner finds that these blood pressure readings do no constitute evidence of chronic elevated blood pressure, then he/she must explain the rationale for such a conclusion. If any of the above requested opinions cannot be made without resort to speculation, then the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. 2. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, then the appellant and her representative should be provided with a Supplemental Statement of the Case and afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anthony M. Flamini 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.