Citation Nr: 21074968 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 18-14 974 DATE: December 16, 2021 REMANDED The appeal regarding entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran had active service from March 1966 to January 1970. He had service in Vietnam from August 1967 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) from an October 2017 rating decision by the Agency of Original Jurisdiction (AOJ) that reopened the Veteran's claim of entitlement to service connection for hypertension and denied the claim on its merits. In March 2020, the Board also reopened the Veteran's claim. The reopened claim was remanded so that an opinion could be obtained regarding the etiology of the Veteran's hypertension. In April 2020, a VA clinician reviewed the record. She concluded that the Veteran's hypertension was not related to service. She reasoned that there was no documentation of hypertension during active service. She also noted that most hypertension had an idiopathic etiology, but was more likely to occur with aging. The Board's current review of the record indicates that the Veteran was seen by J.H.D., M.D. for an examination in September 1971, and the diagnoses included hypertension. The Veteran was seen by a private provider for a blood pressure check in October 1979. A private May 1982 history and physical indicates the Veteran's report of being prescribed Lopressor. In November 1983, O.J., D.O. noted the Veteran's report of hypertension for 14 years, and being prescribed two medications for its control. The Board notes that the Veteran was born in December 1946, and that at the time of the October 1979 blood pressure check, he was 32 years old. Considering this history, and the VA clinician's suggestion that the Veteran's hypertension was more likely related to aging, it appears that her conclusion was not based on a complete review of the record. Regarding a relationship to herbicide exposure, she indicated that the evidence was not clear, citing to various publications to include an article in the Federal Practitioner, a study at the Kaukini Honolulu Heart Program, and an article from Toxicology & Applied Pharmacology. The Board acknowledges that hypertension is not a disease listed under 38 C.F.R. § 3.309(e) for which a presumption of service connection based on herbicide agent exposure applies. However, in November 2018, the National Academy of Sciences (NAS) issued an update on Veterans and Agent Orange that moved hypertension from the "limited or suggestive evidence" category to the "sufficient evidence of an association" category. See Nat'l Acad. of Sci., Inst. of Med., Veterans and Agent Orange: Update 11 (2018), available at https://www.nap.edu/resource/25137/111318_VAO_2018_highlights.pdf. It does not appear that the VA clinician considered this update. The Board concludes that the examination on remand should consider this report in relationship to this particular Veteran's history. Regarding a relationship between the Veteran's service-connected diabetes mellitus and the claimed hypertension, she indicated that there did not appear to be any significant permanent aggravation beyond natural progression of the Veteran's hypertension. However, the Court of Appeals for Veterans Claims has held that, "any incremental increase in disability and any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence" constitutes aggravation. Ward v. Wilkie, 31 Vet. App. 233 (2019). A showing of permanent aggravation or worsening of a non-service-connected disability is not required. Given that the VA clinician used an improper definition of "aggravation" in her opinion, the examination on remand should address whether the claimed hypertension was aggravated by the Veteran's service-connected diabetes mellitus. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of his hypertension. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. A complete history with regard to the Veteran's hypertension should be elicited both from the record and from the Veteran. After the record review and examination of the Veteran, the examiner should provide an opinion regarding whether it is at least as likely as not that hypertension was incurred in, or is otherwise related to active service, to include exposure to herbicide agents. In rendering this opinion, the examiner is asked to consider the National Academies of Science, Engineering and Medicine's Veterans and Agent Orange: Update 11 (2018), at pp 487-98. The examiner should also provide an opinion regarding whether it is at least as likely as not that the Veteran's hypertension was caused OR aggravated by his service-connected diabetes mellitus. The examiner is advised that any amount of aggravation is sufficient to establish secondary service connection; permanent aggravation or worsening of a non-service-connected disability is not required. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Then, readjudicate the Veteran's claim. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period within which to respond thereto. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Barone, 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.