Citation Nr: 21005469 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 16-33 011 DATE: February 1, 2021 REMANDED Entitlement to service connection for the residuals of a fever of undetermined origin is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for left optic neuritis (left eye disability) is remanded. REASONS FOR REMAND The Veteran served in the United States Marine Corps from November 1968 to November 1970. He had service in the Republic of Vietnam from June 1969 to June 1970, and his exposure to herbicides, including Agent Orange, has been conceded. These matters come before the Board of Veterans’ Appeals (Board) from a July 2014 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified before the undersigned Veterans Law Judge. A hearing transcript is associated with the claims file. In November 2019, the Board remanded the Veteran’s appeal. During remand status, in August 2020 and October 2020 rating decisions, the claims for service connection for hearing loss, peripheral neuropathy, and ataxia were granted. As the RO granted in full the benefit sought by the Veteran, there is no remaining allegation of error of fact or law for appellate consideration as to these matters. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 1. Entitlement to service connection for the residuals of a fever of undetermined origin. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for left eye disability. Issues 1 – 3: The Veteran contends that he has left eye disability, residuals of fever of undetermined origin and hypertension due to his fever of undetermined origin in service or, alternatively, to his exposure to toxic substances in service, including burning oil and/or tactical herbicides (including Agent Orange). He testified that, following his fever of undetermined origin, he began to experience dizziness and difficulty walking in service. See Hearing Transcript (June 2019). To ensure that VA has met its duty to assist, the claim must be remanded again for further development. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). First, remand is necessary to obtain outstanding treatment records. The Board’s December 2019 remand directed that the RO obtain complete VA treatment records prior to December 2016. However, the only records obtained on remand are treatment records from 2001 and from 2016 to 2020. Any VA treatment records are within VA’s constructive possession and are considered potentially relevant to the issue on appeal. See Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). A remand is necessary to obtain these records, including complete VA treatment records prior to December 2016, as previously requested by the Board. Second, the Board notes that the Veteran was not notified of the RO’s inability to obtain the identified private treatment records from several private providers, for whom the Veteran submitted VA Forms 21-4142s, Authorization for Release of Information. Three February 2020 Reports of Contact indicate that a fax requesting these records was sent, but the response showed that a fee was required to process the request. VA has not notified he Veteran of any evidence that could not be obtained and his opportunity to submit it. See Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999) (VA has a heightened duty to assist the appellant in developing his claims). With regard to the Veteran’s claim for service connection for hypertension, the Board finds that the January 2020 VA medical opinion obtained in developing the Veteran’s claim is inadequate for adjudicative purposes. Hayes v. Brown, 5 Vet. App. 60, 69 (1993). An adequate medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. Also, “[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Here, the Board is unable to discern the essential rationale for the opinion. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). First, the January 2020 opinion contains clear conclusions with some supporting data, but no reasoned medical explanation connecting the two. Second, the opinion, while outlining the Veteran’s contentions of continued symptoms since service, does not address the Veteran’s full contentions or lay reports. In this case, the record indicates that the Veteran has qualifying Vietnam service, but that he seeks benefits for hypertension that is not presumptively linked to exposure to herbicide agents. If there is no presumptive service connection available, direct service connection can be established if the record contains competent medical evidence of a current disease process with a relationship to exposure to an herbicide agent while in military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). The examiner, here, made no attempt to address whether the Veteran’s hypertension is directly related to herbicide agent exposure to include the Veteran’s reports of continued symptoms since. Third, the examination did not answer the question posed by the Board in its November 2019 remand, specifically, whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s fever of undetermined origin or his exposure to toxic substances, such as burning oil and/or tactical herbicides (including Agent Orange). The opinion answered only that the Veteran’s hypertension is “less likely than not caused by his service,” because it not is not yet a recognized disease linked to the exposure of agent orange or herbicides,” which ignores the question of in-service incurrence, including in-service fever, and direct causation by exposures, including toxic substances, generally. See Stegall, supra. Therefore, given that the VA examiner did not address, among other things, the Veteran’s full contentions, the January 2020 VA medical opinion is inadequate for decision- making purposes, and remand is necessary for an adequate examination and medical opinion. Barr v. Nicholson, 21 Vet. App. 303 at 311. Lastly, the Board notes that, if, upon this remand, any newly obtained or submitted medical evidence shows a diagnosis of a left eye disability, an addendum to the January 2020 VA examination should be obtained. The opinion found that the in-service fever could have caused the light adaptation problem, but the Veteran had “little to no” optic neuritis when tested at the examination. See C&P Exam (January 2020). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period prior to December 2016 and from October 2020 to the Present. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for his hypertension, residuals of fever and left eye disability to include from Dr. Mahajerin, Dr. McNamara, and Dr. Kitts. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. If any records cannot be obtained, provide the Veteran with a proper notice that meets the requirements under 38 U.S.C. § 5103(A)(b)(2) and 38 C.F.R. § 3.159(e), and gives the Veteran opportunity to obtain and submit these records himself. 3. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his hypertension. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Obtain a complete medical history to include the date of onset of hypertension. The opinion should reflect consideration of the Veteran’s documented relevant history and assertions. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The examiner must opine on: (a.) Whether the Veteran’s hypertension is at least as likely as not related to an in-service injury, event, or disease, to include in-service fever of undetermined origin. Consider the Veteran’s reports of hypertension since the early 1970s and diagnosis in 1977. (b.) Whether the Veteran’s hypertension is at least as likely as not related to conceded in-service herbicide agent exposure (regardless of the fact it is not a disease enumerated as presumptively associated with herbicide agent exposure under VA regulations at this time). (c.) Whether the Veteran’s hypertension is at least as likely as not related to exposure to toxic substances, such as burning oil. Note: A negative medical opinion may not be predicated on the absence of the claimed disease/disorder on the VA list of presumptive disorders, or based solely on the absence of documented in-service complaints/findings. 4. If an eye disability is shown in any newly obtained private or VA treatment records, obtain an addendum medical opinion to opine on whether it is at least as likely as not the result of an in-service injury, event, or disease, including the fever of undetermined origin or his exposure to toxic substances such as burning oil and/or tactical herbicides(including Agent Orange). 5. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board 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. (Continued on next page) 6. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.