Citation Nr: 21006900 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 08-26 123A DATE: February 5, 2021 REMANDED Entitlement to service connection for hypertension, to include as secondary to exposure to an herbicide agent and as secondary to service-connected posttraumatic stress disorder (PTSD) and diabetes mellitus is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1966 until his honorable discharge in June 1969, with service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared and testified before the undersigned Veterans Law Judge in a June 2014 videoconference hearing. A transcript of that hearing has been associated with the Veteran’s claims file. In September 2014, January 2016, and September 2016, this matter was remanded for additional evidentiary development. In its January 2016 remand, the Board directed the RO to secure additional medical opinions regarding the etiology of the Veteran’s hypertension. Specifically, the Board requested that a journal article entitled “Post-traumatic Stress Disorder and Cardiovascular Disease” be considered and addressed in the opinion’s rationale. In October 2016, a VA physician provided an opinion that specifically addressed this article. The Board’s September 2016 remand requested that a medical examiner opine on an article from the National Academy of Sciences (NAS) that suggested a “limited or suggestive evidence of an association” between hypertension and herbicide exposure. In a July 2017 denial, the Board recognized that the September 2016 medical opinion that was secured by the RO did not reference this article in explicit terms but found that there was substantial compliance with the Board’s prior remand instructions. The Veteran subsequently appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2018 Joint Motion Partial Remand (Motion), the Court remanded the case to the Board for readjudication and to obtain an adequate medical examination. In accordance with the JMR, the Board then remanded the claim to the RO in November 2019 for further development. The JMR argued that the September 2016 VA examination was insufficient because it failed to address the NAS article. The November 2019 remand instructed the RO to obtain an addendum opinion specifically addressing the NAS article. Unfortunately, the claim had to be remanded two more times in March 2020 and August 2020 in order to obtain an adequate medical opinion. After the November 2019 remand, the RO obtained a VA examination in March 2020. The claim was remanded in August 2020 in order to obtain an opinion on the Veteran’s secondary service assertion regarding PTSD and any update to the NAS article. The RO obtained a VA medical opinion in October 2020 that failed to mention the NAS article, but then obtained an addendum opinion regarding the NAS article in November 2020. Unfortunately, the examiner failed to address the correct study. The Board recognizes and apologizes for the delay in deciding this claim on the merits. Unfortunately, the claim must be remanded. Entitlement to service connection for hypertension, to include as secondary to exposure to an herbicide agent and as secondary to service-connected posttraumatic stress disorder (PTSD) and diabetes mellitus. The September 2016 remand specifically referenced the following study: Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20, 308 (April 11, 2014). This is the NAS study the examiner should have reviewed, instead he cited the “Normative Aging Study (NAS) of 2018.” The Board cannot decide the claim pursuant to the May 2018 JMR without obtaining an adequate medical opinion concerning the National Academy of Sciences (NAS) study mentioned in the September 2016 Board remand and May 2018 JMR. The most recent National Academies of Science Veterans and Agent Orange update outlined the history of the report: In response to the request from VA, the Institute of Medicine (IOM)2 of the National Academies convened the Committee to Review the Health Effects in Vietnam Veterans of Exposure to Herbicides. The results of the original committee’s work were published in 1994 as Veterans and Agent Orange: Health Effects of Herbicides Used in Vietnam, hereafter referred to as VAO (IOM, 1994). Successor committees formed to fulfil the requirement for updated reviews produced Veterans and Agent Orange: Update 1996 (IOM, 1996), Update 1998 (IOM, 1999), Update 2000 (IOM, 2001), Update 2002 (IOM, 2003c), Update 2004 (IOM, 2005), Update 2006 (, 2007), Update 2008 (IOM, 2009), Update 2010 (IOM, 2011a), Update 2012 (IOM, 2014), and Update 2014 (NASEM, 2016a). 2Since March 2016, the Health and Medicine Division of the National Academies has continued the consensus studies and convening activities previously undertaken by the Institute of Medicine (IOM). Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20, 308 (April 11, 2014). The post JMR remand in November 2018 requested, in pertinent part, an addendum opinion from an appropriate medical professional to address the following questions: (a) Is it at least as likely as not that the Veteran’s hypertension is etiologically related to his presumed exposure to an herbicide agent? Why do you say so? In answering this question, the examiner MUST SPECIFICALLY address the National Academy of Sciences (NAS) update suggesting a “limited or suggestive evidence of an association” between hypertension and exposure to an herbicide agent. The RO obtained an addendum opinion in January 2019 and February 2019. However, the January 2019 and February 2019 addendum opinions did not specifically address the NAS update as required by the prior Board and Court of Appeals for Veterans Claims (Court) remands. The Board remanded the claim again in March 2020 as a result. The remand instructions were as follows: The examiner must specifically address the 2014 NAS update suggesting a “limited or suggestive evidence of an association” between hypertension and exposure to an herbicide agent and any subsequent NAS updates that may have been published, if any. If there have been no subsequent NAS updates, the examiner must say so. The RO obtained an opinion in March 2020 that referenced the NAS study as follows: there is no relationship to agent orange toxin case discussed with [Dr. A.] upon review of nas update 2018 The committee concluded that there was sufficient evidence of an association between exposure to at least one of the chemicals of interest and MGUS, a newly considered condition. however there is no cause and effect An extensive review of the available literature fails to document that any significant evidence that herbicide exposure causes hypertension. Herbicide exposure is not an accepted cause for hypertension[.] There is a NAS 2018 update; however, the March 2020 examiner does not cite the update. The article that is cited to in the exam is titled “Association of Dioxin and Dioxin-like Congeners with Hypertension,” by Surbhi Trivedi and Rohit R. Arora, MD, published in the Federal Practitioner. Fed Pract. 2018 May; 35(5): 20–26. This is not the NAS study referenced in the September 2016 remand and May 2018 JMR. The case was unfortunately remanded again in August 2020 in order to obtain an opinion on the etiology of his hypertension in relation to his PTSD. The Board included the following instruction, “The examiner should also consider and address any subsequent NAS update that may have been published since the 2018 NAS update, if any.” A VA examination was obtained in October 2020, but it failed to cite to, reference, or opine on the study, “Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012,” 79 Fed. Reg. 20, 308 (April 11, 2014) or the 2018 update. The RO then attempted to obtain an addendum opinion on the article and the examiner cited to the “Normative Aging Study (NAS) of 2018.” Again, this is not the correct study. Unfortunately, the case must be remanded in order to comply with the May 2018 JMR. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from a VA physician (D.O. or M.D. if possible) regarding the relationship between hypertension and the Veteran’s herbicide agent exposure. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension is caused by exposure to herbicide agents in the Republic of Vietnam. A copy of this remand should be made available to the examiner if possible. The examiner must also consider and address any subsequent update that may have been published since the 2014 report. The examiner is specifically directed toward the National Academies of Science’s biennial update on Veterans and Agent Orange. The examiner should address the National Academies of Science’s “Committee to Review the Health Effects in Vietnam Veterans of Exposure to Herbicides: Veterans and Agent Orange Update 11” (2018). M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A. Johnston, 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.