Citation Nr: A21019489 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 210105-130118 DATE: December 7, 2021 REMANDED Entitlement to service connection for asthma is remanded. Entitlement to service connection for restrictive lung disease is remanded. Entitlement to service connection for an acquired psychiatric disorder to include anxiety is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1964 to January 1969 to include service in the Republic of Vietnam. The matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2020 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The rating decision on appeal constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the January 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. A January 2021 notification advised him that a hearing was scheduled for November 2, 2021. The Veteran did not appear for the scheduled Board hearing and has not provided any good cause for his failure to appear or requested the hearing to be rescheduled. The hearing request is considered withdrawn. 38 C.F.R. § 20.704. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative within 90 days following the date of the scheduled hearing. 38 C.F.R. § 20.302(c). The Board notes that the Veteran had previously appointed the American Legion as his representative. However, in August 2021, the Veteran revoked his appointment of this representative and has not appointed a new representative. Therefore, the Board will consider him to be pro se. 1. Entitlement to service connection for asthma is remanded. 2. Entitlement to service connection for restrictive lung disease is remanded. 3. Entitlement to service connection for an acquired psychiatric disorder to include anxiety is remanded. The Board finds that a remand is warranted to correct a pre-decisional duty to fully assist the Veteran. In a March 2020 rating decision, the RO deferred the above three issues pending VA examinations and opinions with regards to etiology and nature. The record shows that the Veteran was scheduled for several VA examinations in June 2020, but the examinations were on hold due to the COVID-19 pandemic. The documents of record do not show that the Veteran was rescheduled for VA examinations at any point between the deferral in March 2020 and the issuance of the November 2020 rating decision. In October 2020 addendum memo, the Veteran was noted to be in the hospital with no clear discharge date. As such, on remand, the Veteran should be afforded complete VA examinations to determine the nature and etiology of the above three issues. The failure to reschedule VA examinations to determine the etiology of the claimed disorders is a pre-decisional duty to assist error. 4. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II is remanded. The Board finds that a remand is warranted to fulfill the duty to fully assist the Veteran. The Board acknowledges that the Veteran was provided a VA examination to determine the nature and etiology of hypertension, to include as proximately due to Veteran's service-connected diabetes mellitus, type II. The March 2020 VA examiner provided a negative nexus opinion and stated that the exact cause is undetermined, that the medical records at the time of diagnosis of hypertension are unavailable for review, and that hypertension might have preceded the onset of diabetes mellitus, type II. This opinion was provided without a complete rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). However, the March 2020 VA examiner did not discuss whether the Veteran's diabetes mellitus type II may aggravate the Veteran's hypertension. El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Therefore, on remand, an addendum VA opinion is warranted to address whether the Veteran's diabetes mellitus type II could have aggravated the Veteran's hypertension. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In addition, an opinion as to direct service connection was not provided despite the Veteran making such contention. See January 2020 Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ). The failure to obtain an adequate etiology opinion is a pre-decisional duty to assist error. The matters are REMANDED for the following action: 1. Forward the claims file, to include a copy of this remand, to an appropriate VA examiner for opinion as to the nature and etiology of the Veteran's claimed asthma and restrictive lung disease. The opinion should be rendered by an appropriate medical professional. The examiner should review the record and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The need for further in-person examination is left to the discretion of the examiner. The examiner must provide an opinion regarding the following questions: (A) Is it at least as likely as not (50 percent probability or greater) that the Veteran's asthma had its onset in service or is otherwise etiologically related to service, to include as due to heavy equipment and demolition project explosives, and herbicide agent exposure while serving in the Republic of Vietnam? (B) Is it at least as likely as not (50 percent probability or greater) that the Veteran's restrictive lung disease had its onset in service or is otherwise etiologically related to service, to include as due to heavy equipment and demolition project explosives, and herbicide agent exposure while serving in the Republic of Vietnam? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. Forward the claims file, to include a copy of this remand, to an appropriate VA examiner for opinion as to the nature and etiology of the Veteran's claimed acquired psychiatric disorder to include anxiety. The opinion should be rendered by an appropriate medical professional. The examiner should review the record and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The need for further in-person examination is left to the discretion of the examiner. The examiner must provide an opinion regarding the following questions: (A) Identify all of the Veteran's acquired psychiatric disorders that meet, or have met, the Diagnostic and Statistical Manual of Mental Disorders criteria of the American Psychiatric Association (DSM-5) diagnostic criteria. (B) Is it at least as likely as not (50 percent probability or greater) that the Veteran's acquired psychiatric disorder to include anxiety had its onset in service or is otherwise etiologically related to service, to include as due to herbicide agent exposure while serving in the Republic of Vietnam? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Forward the claims file, to include a copy of this remand, to an appropriate VA examiner for opinion as to the nature and etiology of the Veteran's claimed hypertension. The opinion should be rendered by an appropriate medical professional. The examiner should review the record and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The need for further in-person examination is left to the discretion of the examiner. The examiner must provide an opinion regarding the following questions: (A) Is it at least as likely as not (50 percent probability or greater) that the Veteran's hypertension had its onset in service or is otherwise etiologically related to service, to include as due to herbicide agent exposure while serving in the Republic of Vietnam? (B) Is it at least as likely as not (a 50 percent or better probability) that the Veteran's current hypertension was either caused by the Veteran's service-connected diabetes mellitus type II? (C) Is it at least as likely as not (a 50 percent or better probability) that the Veteran's current hypertension was aggravated by (the concept of aggravation must be specifically addressed) the Veteran's service-connected diabetes mellitus type II? If the hypertension is found to not have been caused, but to have been aggravated by the service-connected diabetes mellitus type II, please identify the degree of impairment that is due to such aggravation. All opinions should be supported with a rationale. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.J. Kim, 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.