Citation Nr: 21009755 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-50 025 DATE: February 23, 2021 REMANDED Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1967 to June 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held before the undersigned in August 2019. A transcript of the hearing is of record. This matter was previously before the Board in March 2020 when it was remanded for further development. Entitlement to service connection for hypertension is remanded. Although the additional delay is regrettable, the Board finds an additional remand is required before a decision can be made regarding the Veteran’s claim. In accordance with the March 2020 remand order, medical opinions were obtained to determine the nature and etiology of the Veteran’s hypertension. In the June 2020 opinion, a VA examiner opined that the Veteran’s hypertension was not directly related to his service, including his in-service exposure to herbicide agents. In finding that the Veteran’s hypertension was not related to his in-service exposure to herbicide agents, the examiner essentially stated that the Veteran had not been exposed to enough of the herbicide agents during his service. The examiner noted that veterans in Vietnam had little to no exposure to herbicide agents and that an appreciable accumulation in veterans would have required repeated long-term direct skin contact, not incidental exposure from field conditions where herbicide agents had been sprayed. However, the Board notes the Veteran is presumed to have been exposed to herbicide agents based on his service in Vietnam and this legal presumption has no requirements as to the amount of exposure required for a disease to be related to the exposure. Thus, the Board finds the opinion inadequate and remand for an additional medical opinion necessary. The examiner also opined that the Veteran’s hypertension was not caused by his service-connected diabetes, noting specifically that the Veteran’s hypertension diagnosis predates his diagnosis of diabetes by five years as hypertension was diagnosed in 2005 and diabetes in 2010. However, this rationale is in direct contradiction of Frost v. Shulkin, 29 Vet. App. 131, 138-39 (2017), where the Court of Appeals for Veterans Claims (Court) held that there was not a 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." Thus, the Board finds the opinion inadequate and remand for a new medical opinion necessary. Additionally, the Board notes that there are VA treatment records that were associated with the file after the July 2020 SSOC but before certification of the case to the Board. On remand, the RO should review these records. The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records for the period from July 2020 to the present. 2. After completing the development requested in item (1), obtain an addendum opinion from a VA examiner other than the June 2020 examiner to determine the nature and etiology of the Veteran’s hypertension. The Veteran’s claims file must be made available to the examiner for review. An examination should only be scheduled if the examiner deems one is necessary for providing the requested opinions. Following a review of the claims file, the examiner is asked to provide an opinion on the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension is related to his service, including his in-service exposure to herbicide agents. (b) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension was caused by his service-connected type II diabetes mellitus. (c) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension was aggravated (i.e., any worsening of the condition beyond its natural progression) by his service-connected type II diabetes mellitus. In providing the requested opinions, the examiner should address the literature submitted by the Veteran in August 2019 which suggests a link between hypertension and diabetes and evidence submitted in August 2020 which cites to a 2018 National Academy of Sciences Agent Orange Update that indicates there is “sufficient evidence of association” between hypertension and Agent Orange exposure. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. Review the record and readjudicate the claim on appeal, including any evidence added to the record since the July 2020 supplemental statement of the case. If any benefit on appeal remains denied, in whole or in part, issue an appropriate supplemental statement of the case to the Veteran. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Jiggetts 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.