Citation Nr: 21076214 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-34 072 DATE: December 22, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for tension headaches is remanded. Entitlement to service connection for peripheral neuropathy is remanded. Entitlement to service connection for hypertension, to include as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1969 to February 1973. This matter is on appeal from a March 2014 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, a videoconference hearing was held before the undersigned. A transcript of the hearing is in the record. The case was previously before the Board in June 2020 when it was remanded for further development. An October 2020 rating decision awarded service connection for left shoulder arthritis and for chloracne. As these awards of service connection represent full grants of the service connection matters that were previously on appeal, the matters have been resolved and will not be further addressed herein. The October 2020 rating decision also awarded an increased 10 percent rating for tension headaches, effective January 30, 2013. As this increase did not constitute a full grant of the benefits sought on appeal, the Veteran's claim for an increased rating for tension headaches remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). 1. Entitlement to an initial rating in excess of 10 percent for tension headaches is remanded. The Veteran contends that he is entitled to an initial rating in excess of 10 percent for his service-connected tension headaches. However, upon review of the record, the Board finds that further development is necessary to ensure substantial compliance with the prior remand directives. In the June 2020 remand, the Board instructed the RO to schedule the Veteran for an examination, or telehealth interview if an in-person examination was not feasible, of the current severity of his tension headaches. The record reflects that the RO submitted an examination request but stated that the Veteran did not need to report. The record also reflects that the RO obtained a medical opinion in June 2020 in which the clinician noted that neither an in-person nor telehealth examination was provided and stated that the order was completed using the Acceptable Clinical Evidence (ACE) process to avoid bringing harm to the Veteran during the COVID-19 pandemic. A remand by the Board confers upon the Veteran, as a matter of law, the right to substantial compliance with remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Although the Board understands why an in-person examination was not conducted, the Board's remand had also indicated that a telehealth interview could have been conducted instead of an in-person examination. It is unclear from the record why a telehealth interview was not conducted and only a records review was completed. In this case, an in-person or telehealth examination is important because the schedular criteria for evaluating migraine headaches assess the nature, frequency, and severity of the headaches, and this may be ascertained from the reports by the Veteran. See 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100. Thus, the Board finds that this matter must be returned to the RO to schedule an in-person or telehealth examination as previously instructed. The record also reflects the Veteran receives VA treatment; thus, updated VA treatment records should be associated with the claims file. Moreover, the RO did not issue a supplemental statement of the case (SSOC) after completing additional development on this matter. Governing regulation requires the RO to issue a SSOC pursuant to a remand by the Board if additional evidence is developed. 38 C.F.R. § 19.31(c). As such, a SSOC addressing the development requested by the June 2020 remand and by this remand should be completed on remand. 2. Entitlement to service connection for peripheral neuropathy is remanded. The Veteran contends that he is entitled to service connection for peripheral neuropathy. However, the Board finds that an additional opinion must be obtained to determine whether direct service connection is warranted. VA obtained an addendum medical opinion in December 2020 in which the clinician noted that the Veteran's peripheral neuropathy developed years after service and that VA regulations state that "the peripheral neuropathy must begin within one year of exposure" to herbicide agents. The Board notes that, in order to establish presumptive service connection, early-onset peripheral neuropathy must manifest to a compensable degree within a year after the last date on which the Veteran was exposed to an herbicide agent during active. 38 C.F.R. § 3.307(a)(6)(ii). However, if manifestation within a year of separation is not shown, the Veteran may nonetheless establish service connection by showing direct causation. See, e.g., Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In a separate examination report in October 2020, the clinician noted the date of onset as 1985 but did not adequately address whether there is an etiological relationship between the Veteran's condition and his presumed exposure to herbicide agents. Thus, an addendum opinion must be obtained to determine whether direct service connection is warranted. 3. Entitlement to service connection for hypertension, to include as secondary to a service-connected disability, is remanded. The Veteran contends that he is entitled to service connection for hypertension, to include as secondary to his service-connected posttraumatic stress disorder (PTSD). However, the Board finds that an addendum opinion is necessary to adequately address the Veteran's contention. In December 2020, VA obtained a medical opinion in which the clinician stated that she "cannot state that the PTSD caused the hypertension without resorting to speculation." However, the clinician did not provide an explanation as to why speculation would be necessary or whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. When an examiner states that she cannot provide an opinion without resorting to speculation, the Board must ensure that the examiner has provided an explanation for why speculation would be necessary. See Jones v. Shinseki, 23 Vet. App. 382, 390-91 (2010) (explaining that an inconclusive medical opinion must be "adequately explained by the examiner or otherwise apparent in the Board's review of the evidence"). Specifically, "it must be clear, from either the examiner's statements or the Board decision, that the examiner has indeed considered 'all procurable and assembled data,' by obtaining all tests and records that might reasonably illuminate the medical analysis." Id. at 390. At minimum, the examiner must explain what facts cannot be determined and why. See also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). As the clinician did not provide an explanation for her finding that speculation was necessary, an addendum opinion must be obtained to adequately address the Veteran's contention. Additionally, the examiner did not provide a clear rationale for the conclusion that hypertension was not related to the Veteran's service, including his exposure to herbicide agents therein. As such, the opinion provided on this question is also inadequate and another opinion is needed to address direct service connection. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from December 2020 to the present. 2. After completing the development in item 1, schedule the Veteran for an examination (or telehealth interview, if an in-person examination is not feasible) to assess the current severity of his tension headaches. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 3. After completing the development requested in item 1, return the claims file to the clinician who provided the October 2020 opinion and December 2020 addendum, or another appropriate clinician if that examiner is not available, for review and an addendum medical opinion on the matters of service connection for peripheral neuropathy and hypertension. The reviewing clinician should be requested to provide opinions (based on a review of the record) to answer the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's peripheral neuropathy is related to an in-service injury, event, or disease, to include his presumed exposure to herbicide agents, notwithstanding its onset years after service? (b.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension is related to an in-service injury, event, or disease, to include exposure to herbicide agents? (c.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension was caused or aggravated (i.e., any worsening of the condition beyond its natural condition) by his service-connected PTSD? A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. Thereafter, readjudicate the claims on appeal. If any benefit sought on appeal is not granted, furnish the Veteran and his representative with a supplemental statement of the case, and afford them an opportunity to respond before the file is returned to the Board for appellate consideration. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. H. White, 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.