Citation Nr: 21005507 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 15-03 768 DATE: February 1, 2021 REMANDED Entitlement to service connection for hypertensive vascular disease, to include as secondary to service-connected diabetes mellitus type-II, is remanded. REASONS FOR REMAND The Veteran served in the United States Army from October 1965 to October 1967, including service in the Republic of Vietnam. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a September 2013 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a July 2017 videoconference hearing before the undersigned Veterans Law Judge, and a transcript of this hearing has been associated with the claims file. This matter was previously before the Board in May 2018, at which time it was denied. The Veteran timely appealed to the U.S. Court of Appeals for Veterans Claims (Court), and in February 2019, the Court granted a Joint Motion for Remand, after which the Board remanded this matter in June 2019 in order to obtain additional VA treatment records. This matter came back to the Board in October 2020 and was again remanded for a VA examination. This matter has since returned to the Board for further appellate review.   Entitlement to service connection for hypertensive vascular disease, to include as secondary to service-connected diabetes mellitus type-II, is remanded. The Veteran contends his hypertensive vascular disease is due to his exposure to Agent Orange during service, or otherwise is secondary to his service-connected diabetes mellitus type-II. The record establishes that the Veteran was exposed to Agent Orange during his service in Vietnam. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, shall be service-connected if the requirements of § 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicide agents and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. Id. Although a veteran may not be entitled to a regulatory presumption of service connection for a given disability, the claim must be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). The Veteran’s most recent VA examination was provided in November 2020. In this examination, the examiner opined that the Veteran’s hypertensive vascular disease was less likely than not related to service because this condition does not appear on the list of conditions afforded presumptive service connection for herbicide agent exposure. 38 C.F.R. § 3.309(e). However, even though the Veteran may not meet the requirements for presumptive service connection based on herbicide agent exposure, he can still be service connected on a direct basis. Therefore, an adequate opinion needs to address whether there is a connection between the Veteran’s herbicide agent exposure and his hypertensive vascular disease irrespective of whether the condition qualifies for the regulatory presumption. Additionally, the examiner’s rationale generally stated that the Veteran had multiple risk factors for hypertension; however, it did not explain what those risk factors were or provide any further information other than a general link to an informational web site on hypertension. As for whether the Veteran’s hypertensive vascular disease was proximately due to the Veteran’s service-connected diabetes, the examiner opined that because the Veteran’s hypertensive vascular disease was diagnosed seven years before his diabetes, it cannot be proximately due to his diabetes. However, the Court of Appeals for Veterans Claims ruled in Frost v. Shulkin, 29 Vet. App. 131, 138-39 (2017), that there is no temporal requirement inherent in 38 C.F.R. § 3.310(a) for claims for service connection on a secondary basis, and that the “primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred.” The only temporal requirement is that there be a primary service-connected disease for a separate disease to be connected to secondarily. Id. Thus, the examiner’s opinion on whether the Veteran’s hypertensive vascular disease is proximately due to his diabetes is inadequate. Because the November 2020 VA examiner failed to address whether the Veteran’s hypertensive vascular disease could be due to his in-service herbicide agent exposure on a direct basis, and because the examiner also stated the Veteran’s hypertensive vascular disease was not due to his diabetes solely based on the time of diagnosis for both conditions, the Board finds that the opinion is inadequate, and an addendum opinion is required to address these issues. Thus, the Board must again remand the Veteran’s claim. Accordingly, this matter is REMANDED for the following action: Obtain an addendum opinion from the November 2020 examiner or other qualified examiner regarding the Veteran’s hypertensive vascular disease. If the examiner determines the Veteran should be given another examination (including via telehealth if an in-person examination is not possible) to answer the below questions, one should be scheduled.   The examiner is asked to opine on the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertensive vascular disease had its onset in service or is otherwise related to active service, to include exposure to Agent Orange. The examiner is advised that applicable VA law establishes that the legal provision for presumptive service connection does not otherwise preclude a veteran from establishing service connection with proof of actual direct causation, even if a disorder is not one for which service connection is presumed. (b) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertensive vascular disease is caused by the Veteran’s service-connected diabetes mellitus type-II. The examiner is advised that for a veteran to be service connected on a secondary basis under a causation theory, the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred. Frost v. Shulkin, 29 Vet. App. 131 (2017). Thus, hypertension being diagnosed prior to the diagnosis of diabetes is not a sufficient basis for a negative opinion as to causation. Rather, the examiner must consider whether diabetes may have been present, but undiagnosed, prior to the diagnosis of hypertension. A complete rationale for all opinions must be provided. If medical literature is cited, please explain what is stated in the medical literature that is supportive of the provided opinion. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be given due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gabrielle Ongies, 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.