Citation Nr: 21076637 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 16-62 751 DATE: December 27, 2021 REMANDED Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II, and/or an acquired psychiatric disorder, and/or as due to exposure to herbicide agents, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1968 to October 1972, to include service in the Republic of Vietnam. He was awarded the Combat Action Ribbon among other decorations. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2014 by a Department of Veterans Affairs (VA) Regional Office. In January 2020, the Veteran testified at a Board hearing before a Veterans Law Judge who is no longer with the Board. A transcript of the hearing is associate with the record. A November 2021 letter notified the Veteran that the Veterans Law Judge who conducted the January 2020 hearing is no longer employed at the Board and afforded him an opportunity for an additional hearing. Such letter informed him that, if no response was received with 30 days, the Board would assume the Veteran did not want another hearing and proceed accordingly. Neither the Veteran nor his representative responded to the letter. Consequently, the Board will assume that the Veteran does not want another hearing and will proceed with the adjudication of his appeal. In September 2020, the Board remanded the claim for additional development and it now returns for further appellate review. Entitlement to service connection for hypertension. As noted in the November 2020 remand, the Veteran contends that his currently diagnosed hypertension is secondary to his service-connected diabetes, type II, and/or his service-connected acquired psychiatric disorder, to include PTSD, and/or due to his exposure to herbicide agents. Pursuant to the prior remand directives, in November 2020, a VA examiner found that the Veteran's currently diagnosed hypertension is not related to his service-connected disabilities. In this regard, the examiner noted that the Veteran was diagnosed with hypertension in 1996 and diagnosed with diabetes mellitus, type II in 2003. Therefore, based on the timeline, the VA examiner found that the Veteran's hypertension is less likely than not caused by his diabetes mellitus, type II. In regard to the Veteran's claim that his hypertension is related to his acquired psychiatric disorder, the examiner noted that medical literature does not provide any convincing evidence linking the symptoms of PTSD, anxiety, and depression, to a subsequent diagnosis of hypertension. Furthermore, the medical literature does not provide any convincing evidence that an acquired psychiatric disorder aggravates hypertension beyond its natural progression. Rather, the evidence reveals that the Veteran has suffered from obesity since 1996, and obesity is the leading cause of hypertension. However, the Board finds the November 2020 VA examiner's opinion inadequate to decide the claim. Specifically, the examiner did not address the medical articles and private medical opinions dated in January 2020 and June 2020 submitted by the Veteran, did not provide an opinion regarding whether hypertension was aggravated by the Veteran's diabetes, and did not take into consideration whether any of his service connected disabilities caused him to become obese, which in turn, caused him to develop hypertension. As set forth in a General Counsel Precedential Opinion, obesity can be an "intermediate step" between a service-connected disability and a current disability if proximate causation is shown. Here, proximate causation would be established if (1) a service-connected disability caused the Veteran to become obese; (2) obesity was a substantial factor in causing hypertension; and (3) hypertension would not have occurred but for the obesity that was caused by the service-connected disability. See VAOPGCPREC 1-2017 (January 6, 2017). Based on the foregoing, remand is necessary in order to obtain an addendum opinion addressing the etiology of the Veteran's hypertension. As it pertains to the Veteran's exposure to herbicide agents, the November 2020 VA examiner found that it was less likely than not that his hypertension is incurred in or caused by the exposure. It was noted that, although the National Academy of Science's (NAS) Veterans and Agent Orange update 2018 moved hypertension to "sufficient evidence of an association category," such does not represent a VA directive. Until VA has rendered said directive, the examiner cannot render an opinion regarding hypertension and herbicide exposure. However, the mere fact that the Veteran's claimed disease is not currently deemed presumptively related to service connection by regulation is an insufficient rationale for a negative opinion. While hypertension is not acknowledged to be presumptively to be related to such exposure, service connection may nevertheless be established based on competent medical evidence linking these diseases to such exposure. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Accordingly, an addendum medical opinion must be obtained on remand. The matters are REMANDED for the following action: Return the record, to include a copy of this Remand, to the VA examiner that offered opinions addressing the etiology of the Veteran's hypertension. If the November 2020 VA examiner is not available, the record should be forwarded to an appropriate clinician. Following a full review of the record, the examiner should address the following inquiries: (A) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's currently diagnosed hypertension is caused or aggravated by his service-connected diabetes mellitus, type II. For any aggravation found, the clinician should state, to the best of the clinician's ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. In providing the opinion, the examiner should specifically address the medical articles submitted by the Veteran which discuss the association between hypertension and diabetes mellitus, and the January 2020 and June 2020 private medical opinions which state that diabetes and hypertension frequently coexist. (B) Whether it is at least as likely as not that the Veteran's service-connected diabetes mellitus, type II, or PTSD caused the Veteran to become obese? If yes, was the obesity a substantial factor in causing or aggravating the Veteran's hypertension? If yes, would the hypertension not have occurred but for the obesity caused by the Veteran's service-connected diabetes and/or PTSD? (C) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's currently diagnosed hypertension is related to his conceded in-service herbicide exposure. In offering such opinion, the examiner should consider and discuss NAS IOM's Veterans and Agent Orange: Update 11 (2018) that upgraded hypertension from its previous classification in the category of "limited or suggestive" evidence of an association with exposure to Agent Orange to the category of "sufficient" evidence of an association. According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. A rationale for any opinion offered should be provided. If the examiner is unable to provide an opinion without resorting to speculation, he or she must make clear that he or she has considered all procurable data, but any member of the medical community at large could not provide such an opinion without resorting to speculation. C.B. IWANOWSKI Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Waite 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.