Citation Nr: 21074933 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-19 569A DATE: December 16, 2021 REMANDED Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1970 and June 1972, including service in the Republic of Vietnam. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified during a Board hearing before a Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. In correspondence dated in January 2021, the Veteran was notified that the VLJ who presided over the November 2018 hearing was no longer employed at the Board. The Veteran was given the opportunity to request another hearing, and further was informed that if a response was not received within 30 days the Board would assume that another hearing was not desired. To date, no response has been received. Therefore, it is assumed that the Veteran does not want a hearing before a different VLJ. Entitlement to service connection for hypertension is remanded. In April 2021, the Board, in pertinent part, reopened the claim of service connection for bilateral hearing loss and Meniere's syndrome and remanded them, on the merits, along with the claim of service connection claim for hypertension for additional development. Notably, in a July 2021 rating decision, the RO granted the claims of service connection for bilateral hearing loss and Meniere's syndrome. In April 2021 the Board, in part, directed the RO to contact the Veteran and request that he submit or authorize for release all private treatment records relevant to his claimed disabilities. Pursuant to the April 2021 remand, that same month, a letter was sent to the Veteran notifying him, in pertinent part, that if he received medical treatment from a non-VA/government provider for his claimed disabilities, he may complete and return the enclosed VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs, and VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs. However, the RO received no response from the Veteran after this attempt to obtain records. Notably, the record contains multiple pieces of returned mail, including returned mail addressed to the Veteran, beginning in May 2021, notifying him of the April 2021 Board decision/remand and notifying him that his appeal was returned to the Board. There is some uncertainty whether the Veteran or his representative received notice of the RO's attempt to obtain the Veteran's private treatment records. Given the number of returned mail and to ensure that there is substantial compliance with the prior Board remand directives, a remand is necessary to verify the Veteran's current address. Additionally, upon remand, the Veteran should be afforded a VA examination regarding his hypertension. To this extent, in April 2021, the Board remanded the issue of the service connection for hypertension to schedule the Veteran for a VA examination to determine whether his hypertension had its onset in service or is due to service, to include as due to his in-service exposure to an herbicide agent. Pursuant to the April 2021 Board remand, in July 2021, the Veteran was afforded a VA examination. The VA examiner opined that the Veteran's hypertension was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran "was not given a diagnosis of hypertension." The July 2021 VA opinion is flawed, as the examiner based his negative nexus opinion on the premise that the Veteran does not have a current diagnosis of hypertension. To this end, the Veteran's VA treatment records, dated in 2012, suggest that the Veteran has a current diagnosis of hypertension during the appeal period, as the treatment records show that he was assessed as having hypertension and that he was taking medications to his treat his hypertension. See, e.g., VA treatment record (November 2012). Furthermore, the Veteran's VA treatment records are only current through November 2012, therefore upon remand outstanding VA treatment should be associated with the records. The matter is REMANDED for the following action: 1. Obtain VA treatment records since November 2012. 2. The AOJ should verify the Veteran's current mailing address. His representative should be contacted, and his accurate current address confirmed. Document all efforts in this regard in the record and update all VA information storage systems appropriately. 3. After verifying the Veteran's correct address, ask the Veteran to complete a VA Form 21-4142 regarding any treatment for his hypertension. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. Document all attempts to obtain such records as required in 38 C.F.R. § 3.159. 4. Schedule the Veteran for a VA examination regarding his claim of service connection for hypertension. The examiner should review the entire claims file, before answering the following: a. Whether the Veteran has or had hypertension, even if resolved, since the date of his claim in November 2010. b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension had its onset in service or is otherwise related to service, to include as due to his in-service exposure to an herbicide agent. (Continued on the next page) The examiner should address the recent Agent Orange update from the National Academy of Sciences (NAS) Report where the NAS moved hypertension from limited or suggestive of an association between hypertension and herbicide exposure to sufficient evidence of an association. See Veterans and Agent Orange Update 11 (2018). The examiner should provide a complete rationale for each opinion. Ashley Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.N., 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.