Citation Nr: 21005479 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 08-29 965A DATE: February 1, 2021 REMANDED Entitlement to service connection for hypertension, including as due to exposure to herbicide agents and as secondary to service-connected diabetes mellitus, type II, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1961 to January 1967. His service included duty in Vietnam. His military awards include the Combat Infantryman Badge and the Purple Heart. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a January 2006 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The claim has a lengthy procedural history. In September 2012, a hearing was held before a Veterans Law Judge who has since retired. At the Veteran’s request, and additional hearing was held before the undersigned in December 2017. The Board has previously remanded the Veteran’s claim in March 2013, September 2013, October 2015, March 2016, June 2018, May 2020, and August 2020. Entitlement to service connection for hypertension, including as due to exposure to herbicide agents and as secondary to service-connected diabetes mellitus, type II,(DM), is remanded. The duty to assist requires VA to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with military service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board’s evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Here, the Veteran seeks entitlement to service connection for hypertension. Medical records associated with the claims file confirm that he has been diagnosed with this condition. Initially, a May 2005 VA examination was provided, and the examiner opined the Veteran’s hypertension had been aggravated by his DM. However, the examiner did not describe the degree of aggravation. A September 2007 VA examination did not clearly provide any opinion as to whether the Veteran had a diagnosis of hypertension or whether any hypertension was causally related to his DM. In March 2013, the Board remanded the claim for a new VA examination noting the prior examinations were inconsistent and inadequate to evaluate the claim. A third VA examination was provided in May 2013. The examiner confirmed a diagnosis of hypertension. He opined hypertension was not caused or aggravated by DM. He explained that hypertension was diagnosed many years before the Veteran developed DM. He also explained that both conditions were well controlled, and the Veteran did not experience any reduced renal function. The May 2013 VA examiner did not explain how the Veteran’s renal function or the fact that his conditions were well controlled supported his negative etiology opinion. In August 2013, the Veteran submitted a disability benefit questionnaire, completed by Dr. L. D.,., his private physician, in October 2012. Dr. L. D. indicated the Veteran’s hypertension was at least as likely as not caused by and permanently aggravated by DM. The physician did not include any supporting rationale for his findings. Here, VA examinations of May 2005, September 2007, and May 2013, and the October 2012 disability benefit questionnaire are inadequate to determine whether the Veteran’s hypertension is secondary to his DM. See Stefl, supra. In June 2018,, the claim returned to the Board for continued appellate review. The Board noted the Veteran’s in-service exposure to herbicide agent had been conceded and the National Academy of Sciences (NAS) had concluded there was “limited suggestive evidence of an association” between hypertension and herbicide exposure. See75 Fed. Reg. 32,540, 32,549 (June 8, 2010); 75 Fed. Reg. 81, 332, 81, 333 (December 27, 2010). The claim was remanded to obtain an etiology opinion to address whether the Veteran’s hypertension was causally related to exposure to herbicide agents. In July 2019, a VA examiner opined the condition was less likely than not due to exposure to herbicide agents. In May 2020, the Board observed that the July 2019 examiner had not discussed the NAS study as directed. The Board also noted NAS had recently published The Veterans and Agent Orange: Update 11 (2018), which concluded there was “sufficient” evidence of an association between exposure to herbicide agents and hypertension. The Board remanded the claim and requested an additional VA opinion, including a discussion of the NAS 2018 update. In June 2020, a VA examiner provided a negative etiology opinion for hypertension as due to exposure to herbicide agents. However, the examiner did not discuss the NAS 2018 update. In August 2020, the Board remanded the claim for an additional etiology opinion, compliant with the prior remand’s directives. In November 2020, a new VA etiology opinion was obtained. The examiner observed the Veteran had several risk factors for developing hypertension. She also discussed the NAS 2018 Updated and observed hypertension had been moved to the category of “sufficient” evidence of association from its previous classification in the “limited or suggestive category.” Her report included statements that “the sufficient category indicated that there is enough epidemiologic evidence to conclude that there is a positive association” and “a finding of limited or suggestive evidence means that epidemiologic research results suggest an association between exposure to herbicides and a particular outcome, but a firm conclusion is limited because chance, bias, and confounding factors could not be ruled out with confidence.” The examiner identified hypertension as being in the “sufficient” category. However, she opined the Veteran’s hypertension was less likely than not due to in-service herbicide exposure because she was concerned that the supporting epidemiologic research was influenced by “chance, bias, and confounding factors.” As “chance, bias, and confounding factors” were described as associated with the “limited or suggestive” category and not with the “sufficient” category, the opinion is internally inconsistent. Thus, it is inadequate to evaluate the claim. Id. The Board also notes, the Veteran has generally reported (and testified in September 2012 and in December 2017) that his hypertension was diagnosed many years after service. However, the May 2013 VA examiner noted “he was told of hypertension before he got out of active military duty.” Accordingly, there is some evidence that the Veteran’s hypertension may have been onset during his active service. Further, hypertension is a chronic disease. As a chronic disease, hypertension is presumed to be causally related to service, if it develops to a compensable degree within one year post service. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a). The Veteran’s report to the May 2013 examiner raises the possibility that he developed hypertension during or shortly after separating from active service. A VA opinion must be provided to evaluate when the condition was onset. See McLendon, supra. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate examiner to evaluate the Veteran’s hypertension. The examiner must review the entire claims file including (but not limited to) this BVA decision, all post service medical records, service treatment records, prior VA examinations (May 2005, September 2007, May 2013, July 2019, June 2020, and November 2020), and the transcripts of the Board hearings (September 2012 and December 2017). The examiner should then opine whether the Veteran’s hypertension at least as likely as not related to his active service, including any in-service diagnosis of hypertension or in-service testing which indicated the onset of hypertension. In evaluating whether the Veteran’s hypertension was onset during active service, the examiner must review the May 2013 VA examination which includes the Veteran’s report that he was told of hypertension prior to separating from service. The examiner is instructed that the Veteran is competent to report his observable symptomatology and his understanding of any medical diagnosis as it was provided to him. If the examiner rejects any statement or report from the Veteran, a complete rationale for doing so must be provided. The rationale must go beyond the mere fact that the diagnosis was not documented in contemporaneous treatment records. The examiner should also opine whether the Veteran’s hypertension is at least as likely as not due to his conceded exposure to herbicide agents. In providing this opinion, the examiner is asked to fully review relevant medical studies, including the NAS 2018 Update. The examiner must specifically discuss the NAS 2018 Update in providing this opinion. The examiner should also opine as to whether the Veteran’s hypertension is at least as likely as not proximately due to service-connected DM and whether the Veteran’s hypertension is at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected DM. A complete rationale which describes the interaction between these conditions must be provided. The fact that hypertension was diagnosed before DM was diagnosed cannot be the sole rationale provided for any negative etiology opinion regarding causation or aggravation. Aggravation and causation are distinct are distinct theories and must be addressed separately and independently of each other. If aggravation is found the examiner must attempt to establish a baseline of severity of the hypertension prior to aggravation by the service-connected DM. The examiner must also opine whether it is at least as likely as not that hypertension (a chronic disease) (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. If the examiner determines that an additional in-person examination is needed to provide the requested opinion, schedule an examination. If feasible, schedule a telehealth examination. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeanne Celtnieks 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.