Citation Nr: 21009666 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 10-10 051 DATE: February 23, 2021 REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected coronary artery disease (CAD) and herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1951 to October 1955 and from December 1955 to April 1972. This matter is on appeal from an August 2007 rating decision. In October 2013, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the proceeding is associated with the claims file. In December 2016, the Board denied service connection for hypertension and remanded the claim for TDIU again for further development. In November 2017, the Veteran appealed the December 2016 decision to the United States Court of Appeals for Veterans Claims (Court) where the Court granted a Joint Motion for Partial Remand (JMPR). The Court’s Order vacated, in part, the December 2016 decision denying service connection for hypertension, and remanded the matter to the Board for consideration consistent with the terms of the Joint Motion. In March 2018, the Board remanded the claims for service connection for hypertension and TDIU again for further evidentiary development consistent with the terms of the joint motion. In a November 2018 decision, the Board found that, in light of the award of a total schedular rating for CAD from January 12, 2017 to March 1, 2017, and from August 7, 2018, the claim for TDIU for the period beginning January 12, 2017 and ending March 1, 2017 and for the period beginning August 7, 2018, were moot. The Board also denied a TDIU for the period beginning March 2, 2017 and ending August 6, 2018. In July 2019, the Board denied service connection for hypertension and entitlement to TDIU prior to January 12, 2017. The Veteran appealed the denials to the Court, which in April 2020, on the basis of a Joint Motion for Remand (JMR), vacated the denials and remanded the matters to the Board for further consideration. In an October 2020 decision the Board denied a TDIU prior to prior to January 12, 2017, and remanded the claim of entitlement to service connection for hypertension for further development. Specifically, the Board requested etiological opinions regarding the etiology of the Veteran’s hypertension. Regarding direct service connection, the Board requested an opinion as to whether the Veteran's claimed hypertension was related to his active duty service, including exposure to herbicide agents. The examiner was told that he/she could not use, as the sole basis for the opinion, the fact that hypertension is not one of the diseases on the list of diseases presumed service connected in veterans exposed to herbicides. Rather, the examiner was asked to explain why any statistical or medical studies are found to be persuasive or unpersuasive and address whether there were other risk factors that might be the cause of the Veteran’s hypertension or whether it manifested in an unusual manner. In a November 2020 opinion, an examiner opined that there was no evidence of hypertension in service so it was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that the literature did not support the claim. The examiner was also asked to specifically address the 2012 NAS Agent Orange 2012 Update indicating that “there is limited suggestive evidence to support an association between exposure to the herbicides including Agent Orange and the diagnosis of chronic hypertension,” to which he simply opined that the literature did not support the claim. In a December 2020 addendum in response to the AOJ’s request for an opinion responsive to the Board’s request for an examiner to address the 2012 NAS Agent Orange Update, the examiner simply stated that given the limited evidence to support the association of Agent Orange and hypertension, a negative opinion is provided. The examiner also failed to explain why any statistical or medical studies are found to be persuasive or unpersuasive and failed to address whether there were other risk factors that might be the cause of the Veteran’s hypertension. Regarding whether the Veteran’s hypertension was proximately due to or the result of his service-connected CAD, the examiner opined that it was not, based on an exhaustive literature search and minimal evidence that CAD is a cause for hypertension. The examiner opined that there is, however, strong evidence that hypertension can cause CAD. Regarding whether the Veteran’s hypertension was aggravated by his service-connected CAD, the examiner opined that there is strong evidence that hypertension is a cause for CAD and that hypertension, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. However, the evidence does not show nor does the Veteran contend that he had pre-existing hypertension that was aggravated by his service. On this basis, the Board finds that the opinion is based on an inaccurate factual premise. Based on the foregoing, the Board finds that the November 2020 medical opinion and December 2020 addendum are inadequate for adjudication purposes. As it remains unclear whether the Veteran’s hypertension is related to his service or service-connected CAD, on remand an addendum should be obtained. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). This matter is REMANDED for the following actions: Obtain an appropriate addendum by an examiner, other than the November 2020 VA examiner, regarding the nature and etiology of the Veteran’s claimed hypertension. Unless the examiner finds that a new examination is required, the Veteran need not be examined again. The claims file, including a copy of this remand, must be made available to the examiner for review who should indicate that the claims file was reviewed. The examiner should provide the following opinions: a) Is it at least as likely as not (50 percent or more probability) that any hypertension, had its onset in or is etiologically-related to the Veteran’s active duty service, to include herbicide agent exposure, or was manifested within the first post service year? In rendering this opinion, the examiner cannot use as the sole basis for the opinion the fact that hypertension is not one of the diseases on the list of diseases presumed service connected in veterans exposed to herbicides. Rather, the opinion should explain why any statistical or medical studies are found to be persuasive or unpersuasive and should address whether there are other risk factors that might be the cause of the Veteran’s hypertension or whether it manifested in an unusual manner. The examiner should also specifically address the 2012 NAS Agent Orange 2012 Update indicating that “there is limited suggestive evidence to support an association between exposure to the herbicides including Agent Orange and the diagnosis of chronic hypertension.” b) If the answer to part (a) above is “no,” is it at least as likely as not (50 percent probability or more) that the Veteran’s hypertension is (a) proximately due to or the result of the Veteran’s service-connected CAD, or (b) aggravated (any incremental increase in the hypertension beyond its normal progression) by his service-connected CAD? If it is determined that hypertension is related to a service-connected disability, to the extent possible, the examiner should indicate the approximate degree of disability or baseline before the onset of aggravation. The examiner is asked to consider and discuss as necessary the pertinent evidence of record to include the Veteran’s lay statements, testimony and complaints concerning his hypertension, including those made to medical providers, and September 2020 Brief. The Board, by this remand, makes no determination, expressed or implied, concerning the credibility of any statements on file. The report of examination should include the complete rationale for all opinions expressed. The phrase “at least as likely as not” does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. If an opinion cannot be rendered without resorting to speculation, the medical officer should explain why it would be speculative to respond. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Adams, 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.