Citation Nr: 21010516 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 14-32 606 DATE: February 25, 2021 REMANDED Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents and/or as secondary to service-connected posttraumatic stress disorder (PTSD) or coronary artery disease (CAD), is remanded. Entitlement to service connection for headaches, to include as due to exposure to herbicide agents and/or as secondary to service-connected PTSD, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1968 to July 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the issues of entitlement to service connection for bladder cancer and a respiratory disorder were previously remanded in November 2014 for additional development. As the ordered development has not yet been completed and the issues have not been recertified to the Board, such matters will be addressed in a future decision issued at a later date, if otherwise in order. The November 2014 decision also remanded the issued addressed herein in order to afford the Veteran a Board hearing before a Veterans Law Judge. Thereafter, in December 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In April 2018 and September 2020, the Board remanded the instant claims for additional development and the case now returns for further appellate review. 1. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents and/or as secondary to service-connected PTSD or CAD. 2. Entitlement to service connection for headaches, to include as due to exposure to herbicide agents and/or as secondary to service-connected PTSD. As noted in the prior remands, the Veteran contends that his currently diagnosed hypertension and headaches had their onset in service. Specifically, he alleges that his headaches began during basic training and continued since that time. He also argued that his separation examination reflected complaints of shortness of breath, thus suggesting the onset of hypertension. The Veteran further claims that his hypertension and headaches are related to his acknowledged in-service exposure to herbicide agents or, in the alternative, are caused or aggravated by his service-connected PTSD as his heart rate and headache symptoms increase when his PTSD is active. He further alleged that his hypertension is secondary to his service-connected CAD. In September 2020, the Board remanded both issues in order to obtain an addendum opinion addressing all theories of entitlement as the opinions of record, to include July 2010 and August 2010 opinions from Dr. L. and a February 2019 opinion from a VA examiner, were inadequate to decide the claims. Consequently, in September 2020, a different VA examiner reviewed the entirety of the evidence and likewise offered unfavorable etiological opinions. While he adequately addressed whether the Veteran’s hypertension is related to his military service, to include his in-service exposure to herbicide agents, the Board finds that, as detailed below, another remand is necessary in order to obtain an addendum opinion addressing the remaining aspects of his claims. In this regard, the examiner opined that it was not at least as likely as not that the Veteran’s headaches, diagnosed as migraines, had their onset in, or are otherwise related to his military service, to include his in-service exposure to herbicide agents, or manifested within one year of his separation from service. In this regard, he noted that the Veteran’s STRs were negative for treatment for headaches and there is no known mechanism by which Agent Orange could cause headaches. The examiner further found that, as the Veteran reported frequent or severe headaches on his March 1971 separation, which were found to have existed prior to service, such did not have their onset in service. However, as such were not noted on the Veteran’s March 1968 entrance examination, the presumption of soundness must be rebutted by clear and unmistakable evidence that such disorder pre-existed service and were not aggravated therein. Consequently, an addendum opinion addressing the proper legal standard must be obtained. The examiner further opined that it is not at least as likely as not that the Veteran’s hypertension is caused or aggravated by his PTSD or CAD. In this regard, he indicated that, while medical literature reflects that PTSD can temporally increase the blood pressure, there are no records in the Veteran’s file and no medical literature that definitively finds that the sustained increases in blood pressure needed for the diagnosis of hypertension were caused by PTSD or CAD. The examiner similarly opined that it is not at least as likely as not that the Veteran’s headaches are caused or aggravated by his PTSD. In this regard, he again noted that such disorder pre-existed the Veteran’s service, and found that the medical literature and medical evidence revealed no definitive mechanism or measurable way by which headaches could have been permanently aggravated by the Veteran’s PTSD. In this regard, he indicated that a temporary increased in headache symptoms caused by a flare of PTSD is usually acute and transitory, and does not equate to a permanent increase in a headache disability. Further, there were no treatment records that find or describe the magnitude by which PTSD permanently increased the Veteran’s headache disability. However, the Board finds that the examiner applied the incorrect standard when opining whether the Veteran’s hypertension and headaches are caused or aggravated by his PTSD or, in the case of the former disorder, his CAD. Specifically, in Ward v. Wilkie, 31 Vet. App. 233 (2019), the United States Court of Appeals for Veterans Claims held that awarding service connection on the basis of aggravation by a service-connected disability (per 38 C.F.R. § 3.310(b)) does not require that there be “permanent worsening” of the nonservice-connected disability. Furthermore, the examiner did not discuss the Veteran’s testimony that his heart rate increased when his PTSD was active, the August 2010 record from Dr. L. reflecting a notation that headaches are a symptom of the Veteran’s PTSD, or the July 2010 opinion from Dr. L. stating the Veteran’s hypertension and migraine headaches are related to his PTSD. Therefore, based on the foregoing, a remand is necessary in order to obtain an addendum opinion addressing such matters. The matters are REMANDED for the following action: Return the record, to include a copy of this Remand, to the September 2020 VA examiner who offered opinions addressing the etiology of the Veteran’s hypertension and headaches. If he is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. Following a review of the record, the examiner should address the below inquiries: (A) Did the Veteran’s headaches, diagnosed as migraines, clearly and unmistakably exist prior to his entry to service in September 1968? If so, please identify such clear and unmistakable evidence. (i) If there is clear and unmistakable evidence that the Veteran’s headaches, diagnosed as migraines, pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that such disorder did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. If there was an increase in the severity of the Veteran’s headaches, diagnosed as migraines, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (ii) If there is no clear and unmistakable evidence that the Veteran’s headache disorder, diagnosed as migraines, pre-existed service, the examiner should opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disorder had its onset in, or is otherwise related to, the Veteran’s military service, to include his report of frequent or severe headaches on his March 1971 Report of Medical History and/or his acknowledged exposure to herbicide agents? (iii) If there is no clear and unmistakable evidence that the Veteran’s headache disorder, diagnosed as migraines, pre-existed service, the examiner indicate whether his migraines manifested within one year of his separation from service in July 1971, i.e., by July 1972? If so, please describe the manifestations. (B) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s hypertension is caused or aggravated by his PTSD or CAD? For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. In offering such opinion, the VA examiner must consider the Veteran’s testimony that his heart rate increased when his PTSD was active and the July 2010 opinion from Dr. L. stating the Veteran’s hypertension is related to his PTSD. (C) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s headaches, diagnosed as migraines, are caused or aggravated by his PTSD? For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. In offering such opinion, the VA examiner must consider the August 2010 record from Dr. L. reflecting a notation that headaches are a symptom of the Veteran’s PTSD and the July 2010 opinion from Dr. L. stating the Veteran’s headaches are related to his PTSD. Further, in offering the opinions regarding secondary service connection, the examiner is advised that VA regulations do not require that there be “permanent worsening” of the nonservice-connected disorder by the service-connected disability. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. M. Kelly, 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.