Citation Nr: 21076566 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 14-38 486 DATE: December 27, 2021 REMANDED Entitlement to service connection for hypertension, to include as due to herbicide exposure, and in the alternative as secondary to service-connected diabetes mellitus, type II, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1967 to September 1970 with verified service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2012 and October 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in a Board hearing before the undersigned Veterans Law Judge in April 2017. The issue on appeal was previously denied by the Board in July 2020. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2021 Order, pursuant to a June 2021 Joint Motion for Remand (JMR), the Court vacated the Board's July 2020 decision and remanded the claim for action consistent with the terms of the JMR. The case is now before the Board. This case was remanded in September 2018. The Board requested that the examiner address whether it was at least as likely as not that the Veteran's hypertension was directly related to service, including herbicide agent exposure therein, or as proximately due to or aggravated by the service-connected diabetes. The Veteran was afforded a VA examination and opinion in August 2019. The examiner stated the Veteran was diagnosed with hypertension in 2002. The examiner opined that it was less likely as not that the Veteran's current hypertension is secondary to or result of active military service or herbicide agent exposure. The examiner went on to state that the conditions are not related as there are no direct pathophysiological relationship between the two conditions or any medical records showing such relationship. The examiner stated the Veteran's hypertension is most likely an idiopathic hypertension that has no identifiable cause, most commonly affecting 95% of the patients with hypertension. It is commonly idiopathic, that tends to be familial and a consequence of interaction between environmental and genetic factors and not cause by any one particular disease. The Court in the June 2021 JMR found that the August 2019 VA examination did not comply with the September 2018 Board remand directives. The Court found that while the examiner listed the common causes of hypertension, she did not address the specifics of the Veteran's family history, environmental exposure, including herbicide exposure, or genetic factors that led her to believe his hypertension was idiopathic. The Court also found that on remand, the Board should address the National Academy for Sciences (NAS) report called Veterans and Agent Orange: Update 2012. The Court further found that the August 2019 examiner relied on an inaccurate factual background regarding the timing of the Veteran's diagnosis of diabetes. The Court cited the October 2009 VA examination and a January 2009 statement by the Veteran when pointing out the earlier diagnosis. Remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board's remand order and the June 2021 JMR. Stegall v. West, 11 Vet. App. 268, 270- 71 (1998). The August 2019 examiner failed to comply with the prior Board remand directive regarding the Veteran's hypertension and exposure to herbicides. Thus, this case must be remanded back to the RO for it to carry out the original remand instructions, copied in large part below. The matter is REMANDED for the following action: 1. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), make efforts to obtain all VA and private treatment records concerning this claim. 2. After the above has been completed, schedule the Veteran for a new VA examination with a qualified medical professional to determine the nature and etiology of any diagnosed hypertension. The examiner must review the entire claims file including all Board decisions and remands, the June 2021 JMR, lay statements, and the NAS updates regarding herbicide exposure in conjunction with the examination. After record review and examination, the VA examiner should offer his or her opinion with supporting rationale as to the following inquiries: (a) Determine the earliest diagnoses of diabetes mellitus and hypertension. (b) The examiner is requested to opine whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that any hypertension is directly related to active military service, including herbicide agent exposure therein. The examiner must consider and address the NAS Updates which concluded that there was limited or suggestive evidence of an association between hypertension and herbicide exposure. It is not sufficient to conclude that hypertension is not caused by herbicide exposure by stating that hypertension is not listed in VA regulations as presumptively service connected. If the examiner finds the Veteran's hypertension is idiopathic, the examiner should address the specifics of the Veteran's family history, environmental exposure (including herbicide exposure), or genetic factors that led him/her to believe the Veteran's hypertension is idiopathic. (c) The examiner is requested to opine whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that any hypertension was caused or aggravated by the Veteran's service-connected diabetes mellitus. Aggravation under 38 C.F.R. § 3.310(b) does not require that there be "permanent" worsening of the nonservice-connected disability. The VA examiner must provide separate findings and rationales relating to causation and aggravation. The basis for each opinion is to be fully explained with a complete discussion of the pertinent lay and medical evidence of record and sound medical principles, including the use of any medical literature or studies, which may reasonably explain the medical analysis in the study of this case. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hetman 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.