Citation Nr: 21009176 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 15-18 929 DATE: February 19, 2021 REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for asthma is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1966 to July 1970 and July 1972 to September 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran service connection for hypertension and asthma. A Board hearing was held in April 2019. A transcript is of record. These issues were remanded separately in October 2019 and January 2020 to the Agency of Original Jurisdiction (AOJ) for additional medical opinions as to direct and secondary service connection theories. In July 2020, the Board found that the AOJ did not obtain an opinion as to the Veteran’s asthma or adequate opinions as to the Veteran’s hypertension. The Board remanded both claims for additional opinions. The claims are back before the Board for further appellate proceedings. Regrettably, the Board finds that further evidentiary development is necessary and remands the case for adequate opinions that address the Veteran’s contentions. 1. Entitlement to service connection for hypertension is remanded. The Veteran has made three contentions regarding the etiology of his hypertension: (1) his hypertension started in service; (2) his hypertension was caused by his presumptive exposure to herbicides; and (3) his hypertension was caused or aggravated by his service-connected posttraumatic stress disorder (PTSD). For the reasons that follow, the Board finds that another remand is necessary for adequate medical opinions to address the Veteran’s contentions as well as an additional theory raised by the record. In Garner v. Tran, the Court of Appeals for Veterans Claims (Court) held that, in a secondary service connection claim, a theory of obesity as an intermediary step is raised when there is some evidence in the record which draws an association or suggests a relationship between the veteran’s obesity and a service-connected condition. Garner v. Tran, ____ Vet.App. ____, No. 18-5865 (2021). The Court specifically stated that the “inability to follow a course of exercise or diet as a result of a service-connected mental disorder” is an example of when the record raises this theory. Here, the Veteran contends that his PTSD caused or aggravated his hypertension. VA treatment records show that the Veteran has endorsed increased appetite and overeating as a result of his service-connected PTSD. See October 2012 VA treatment records. He has received treatment for obesity throughout the appeal period. Id. Treatment records also show that the Veteran’s hypertension and diabetes mellitus are comorbidities of his obesity. See August 2015 VA treatment records. Thus, the record reasonably raises the theory of obesity as an intermediary step. An opinion as to this theory is necessary on remand. The claim for service connection for hypertension was remanded for opinions relevant to the Veteran’s contentions. Responsive opinions were added to the record in August 2020. For the reasons that follow, the Board finds that these opinions are inadequate for adjudicative purposes. Though the claim is remanded for more appropriate opinions, the Board finds it appropriate to explain the extent of the examiner’s inadequacy here. The examiner ultimately concludes that the Veteran’s hypertension did not start in, or is otherwise related to, service or PTSD. See August 2020 VA examination report. In support of this conclusion, the examiner relies on specific blood pressure readings in service, a gap in medical records, and statistical studies of correlation. Id. First, the examiner concludes that the Veteran did not have hypertension in service. In support of this conclusion, the examiner lists eight, non-consecutive blood pressure readings taken in July 1972, between July 1974 and December 1974, and in August 1976. Id. The eight readings show that the Veteran’s blood pressure was within normal limits except for half of the readings in which the Veteran was “actually ill.” Id. The examiner does not provide an explanation as to why only certain dates were picked or, more importantly, why half of those readings are not relevant to a hypertension diagnosis therein. Id. Moreover, significant blood pressure readings are more abundant than the examiner contemplates. Blood pressure readings that show a 140 systolic and 70 diastolic are indicative of “borderline hypertension.” Id. The Veteran was treated on at least seven occasions in service where he presented with borderline hypertension or worse between March 1974 and August 1976. See STRs. On three occasions in August and September 1974, blood pressure readings showed over 160 systolic and over 90 diastolic. Id. Given the examiner’s mischaracterization of evidence and insufficient reasoning, this opinion on direct service connection is inadequate for adjudicative purposes. The examiner’s opinion related to PTSD and to herbicide exposure are also inadequate. As to an etiological connection with PTSD, the examiner did not discuss the high blood pressure readings in service where the Veteran was in treatment for depression and, in the course treatment, asserted a connection between his contemporaneous symptoms and high blood pressure. See STRs. As to an etiological connection with herbicide exposure, the examiner relied on a comparison of statistical analysis to conclude that aging is statistically a higher risk factor than exposure to an herbicide agent. See August 2020 VA examination report. Such an opinion is also inadequate. See Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009). Thus, new opinions are necessary on remand. 2. Entitlement to service connection for asthma is remanded. The Veteran contends that his asthma started in service. See Board hearing Tr. at 15 – 19. Specifically, the Veteran alleges that he episodically wheezed in service and was prescribed albuterol therein. Id. The Veteran’s alleged wheezing in service is supported by service treatment records (STRs). In 1974 and 1975, the Veteran was treated for complaints of chest pain, to include during deep breaths. See STRs. Treatment providers in service noted acute bronchitis with some second-degree chest wall tenderness, rhonci with rales, and bronchial breathing sounds. Id. Indeed, the Board remanded for a medical opinion to address the Veteran’s respiratory complaints in service and his current asthma. The Veteran was afforded a VA examination in August 2020. Similar to the direct service connection opinion for hypertension, the same examiner chose two treatment dates showing no respiratory issues to conclude that the Veteran did not have asthma in service. See August 2020 VA examination. As noted in the previous paragraph, the Veteran was treated for respiratory complaints in service. Without more, the examiner’s opinion is inadequate for adjudicative purposes. A new opinion is necessary on remand. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his hypertension and asthma that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After the development in #1 is completed, schedule the Veteran for an examination to determine the nature and etiology of his hypertension. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner is asked to respond to the following inquiries: A. Is it at least as likely as not that the Veteran’s hypertension was incurred in, or is otherwise related to, his time on active service, to include presumptive exposure to herbicides therein? The examiner is not to solely rely on VA’s decision whether to add hypertension to the presumptive service connection list for exposure to herbicide agents. The examiner is to discuss the Veteran’s documented blood pressure readings in service. B. Is it at least as likely as not that the Veteran’s hypertension was (a.) caused or (b.) aggravated by his service-connected disabilities, to include diabetes mellitus and PTSD (to include medication taken for PTSD) as well as obesity as an intermediary step? The examiner is to discuss the Veteran’s documented blood pressure in service while in treatment for depression. The examiner is also to discuss the effect, if any, of obesity in the development or aggravation of the Veteran’s hypertension. If the Veteran’s hypertension is related to his obesity, the examiner is to discuss the effect, if any, of the Veteran’s PTSD and/or diabetes mellitus on his obesity. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After the development in #1 is completed, schedule the Veteran for an examination to determine the nature and etiology of his asthma. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner is asked to respond to the following inquiry: Is it at least as likely as not that the Veteran’s asthma was incurred in, or is otherwise related to, his time on active service, to include documented chest pain and bronchial breathing sounds therein? In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. (Continued on the next page)   4. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Strickland 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.