Citation Nr: 21010032 Decision Date: 02/24/21 Archive Date: 02/23/21 DOCKET NO. 16-63 157 DATE: February 24, 2021 REMANDED Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from November 1966 to November 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in May 2017. In December 2018 decision, the Board remanded the Veteran’s claim for service connection for hypertension for additional development. The matter is now returned to the Board for further appellate review. The Board remanded this matter in December 2018, in part, to obtain a new medical opinion addressing whether the Veteran’s hypertension is at least as likely as not the result of disease or injury in service; or proximately due to, or aggravated by, his service-connected coronary artery disease (CAD) or his service-connected adjustment disorder. The Board specifically asked the examiner to address both causation and aggravation. VA provided the Veteran an examination in October 2019 to determine the nature and etiology of his hypertension. The examiner opined the Veteran’s hypertension is less likely than not proximately due to or the result of the Veteran’s service-connected CAD. The examiner did not, however, provide an adequate rationale. The provided rationale states that the examiner could not link aggravation of the Veteran’s hypertension beyond its natural progression without resorting to speculation and that linking hypertension to any aggravation caused by the service-connected chronic adjustment disorder would be speculative. Thus, the rationale does not address direct causation at all and fails to provide an opinion on aggravation, instead noting that the physician could not provide an opinion on aggravation without resorting to speculation (and providing no explanation for why the opinion on aggravation could not be provided without resorting to speculation). Thus, remand for a new opinion is warranted in this case. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by Board confers upon claimant, as a matter of law, the right to compliance with remand order). Additionally, the medical opinions of record in this case have noted that the diagnosis of CAD was made after the diagnosis of hypertension, implying that because the hypertension was diagnosed first, it could not have been caused or aggravated by the CAD. The Court of Appeals for Veteran’s Claims (Court) has specifically held, however, that in order 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, 138 (2017) (holding 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). Lastly, exposure to herbicides has been conceded in this case based on the Veteran’s service in Vietnam. Although current VA regulations do not provide that hypertension is a presumptive disability associated with herbicide exposure, the National Academies of Sciences, Engineering and Medicine (NAS) published a 2018 update to “Veterans and Agent Orange” and concluded that there was “sufficient evidence of an association” between hypertension and herbicide exposure. According to NAS, the sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive associated between hypertension and herbicide exposure. As this evidence indicates that there may be an association between the Veteran’s hypertension and his conceded herbicide exposure, the Board concludes that a VA opinion is necessary to determine whether the Veteran’s current hypertension was caused by his herbicide exposure during military service. The matter is REMANDED for the following action: Obtain an opinion addressing the etiology of the Veteran’s hypertension. Only schedule the Veteran for a new examination if deemed necessary by the clinician selected to provide the opinion. Please note, if the examiner deems it reasonable, an alternate format such as a telehealth interview is acceptable. The selected examiner must provide an opinion addressing whether the Veteran’s hypertension is at least as likely as not the result of disease or injury in service; or is proximately due to, or aggravated by, his service-connected coronary artery disease or his service-connected adjustment disorder with mixed emotional features. The secondary service connection opinion must address both causation and aggravation to be deemed adequate. The examiner is advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. The examiner is advised that if a negative opinion is provided for the secondary service connection claim, the rationale provided must go beyond noting that hypertension was diagnosed before CAD was diagnosed as there is no requirement in VA regulation that the primary disability must be diagnosed prior to the secondary disability in order to establishment entitlement to service connection on a secondary basis. The examiner must also opine whether it is at least as likely as not (a degree of probability of 50 percent or higher) that the Veteran’s hypertension is related to his conceded exposure to herbicides in service. In doing so, the examiner must address the 2018 update to the NAS study which concluded that there is “sufficient” evidence of an association between herbicide exposure and hypertension. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zachery S.C. Luce, 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.