Citation Nr: 21011458 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-11 359 DATE: March 1, 2021 REMANDED Entitlement to service connection for hypertension due to herbicide exposure, and to include secondary to service-connected diabetes mellitus type II (DMII), is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1968 to February 1971, to include service in the Republic of Vietnam. This matter is before the Board of Veterans’ Appeals (the Board) on appeal from a February 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision, inter alia, denied service connection for high blood pressure and a TDIU. The Veteran’s Notice of Disagreement (NOD) was received in March 2015. The Statement of the Case was issued in January 2016 and the Veteran’s VA Form 9, substantive appeal to the Board was received in March 2016. An October 2019 Board decision denied the claims. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (the Court). In an August 2020 Order, the Court vacated the October 2019 Board decision and remanded the matter to the Board for development consistent with the parties’ Joint Motion for Remand. The case was returned to the Board. 1. Entitlement to service connection for hypertension due to herbicide exposure, and to include secondary to the service-connected DMII. The Veteran seeks service connection for hypertension. He alleges that his hypertension is due to exposure to herbicides in service. In the alternative, the Veteran contends that he developed hypertension as a result of his service-connected DMII. Specifically, the Veteran contends that he first developed DMII which then caused his obesity and that his obesity served as in “intermediate step” between his service-connected DMII and his hypertension. 38 C.F. R. § 3.310(a). With respect to the first theory of entitlement, hypertension is not currently on the list of diseases under 38 C.F.R. §§ 3.309(e) that are presumed due to in-service herbicide exposure. However, in November 2018, the National Academy of Sciences (NAS) upgraded hypertension from the “limited or suggestive evidence” category to the “sufficient evidence” category, indicating that there was enough epidemiologic evidence to conclude that there is a positive association between hypertension and herbicide agent exposure in Vietnam. See Veterans and Agent Orange: Update 11 (2018), Table S-1 and footnote 1. As the evidence of record shows that the Veteran is diagnosed with hypertension, and exposure to herbicides has been conceded, this matter must be remanded to obtain a VA medical opinion addressing the nexus question in light of the most recent 2018 NAS update as it relates to the Veteran’s claim. There is a “low threshold” when assessing the need for a medical examination. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As there is evidence indicating that there is sufficient evidence of a positive association between hypertension and Agent Orange exposure, an addendum medical opinion is necessary to determine whether the Veteran’s hypertension was caused by or etiologically related to herbicide exposure during active military service. Accordingly, a remand is necessary to obtain an addendum medical opinion. With respect to the Veteran’s second theory of entitlement, obesity is not considered a disability for VA purposes, and therefore service connection may not be established for obesity. However, a VA General Counsel Precedent Opinion (1-2017) has determined that obesity can constitute an “intermediate step” between a service-connected disability and a disability that may be service connected on a secondary basis. This not only applies when a service-connected disability causes obesity, but also when a service-connected disability aggravates obesity. When raised by the record, the Board must consider whether obesity was caused or aggravated by a service-connected disability, consistent with 38 C.F.R. § 3.310. In this case, a January 2015 VA examination report indicates that the Veteran has had a body max index (BMI) ranging from 45 to 47. Further, the January 2015 VA medical opinion indicates that the Veteran’s hypertension is directly related to his extreme morbid obesity. The nexus between the Veteran’s service-connected DMII and obesity has not been addressed. In this light, an addendum medical opinion is required as to whether the Veteran’s service-connected DMII has either caused or aggravated his obesity. See Walsh v. Wilkie, 32 Vet. App. 300 (2020); see also Allen v. Brown, 7 Vet. App. 439 (1995); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213, 216 (1992); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 2. Entitlement to a TDIU. The Veteran contends that he is unemployable due to his service-connected disabilities. The Veteran’s claim for TDIU is inextricably intertwined with his claim on appeal for service connection for hypertension. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably inter inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, the claim for TDIU must be remanded. These matters are REMANDED for the following action: 1. Obtain an addendum medical opinion on the issue of service connection for hypertension. The need for further physical examination of the Veteran is left to the discretion of the examiner providing the medical opinion. The claims file, including a copy of this remand must be made available to the examiner for review, and the examiner should indicate that the claims folder was reviewed in connection with providing the opinion. The examiner is requested to provide an opinion with respect to the following: (a.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s hypertension is etiologically related to military service, to include exposure to herbicides, including Agent Orange during active military service. A complete, clearly-stated rationale for the conclusions reached, to include identification of evidence and medical authority relied upon must be provided. The examiner should discuss the National Academy of Sciences (NAS) Institute of Medicine’s Veterans and Agent Orange: Update 2018 and all other medical literature and/or studies used in offering his or her opinion. (Continued on the next page)   (b.) Whether it is at least as likely as not that the Veteran’s obesity is caused by or aggravated by his service-connected DMII (for the purposes of determining whether the service-connected DMII and any obesity related thereto as likely as not caused or aggravated the Veteran’s hypertension)? 2. Following readjudication of the claim for service connection for hypertension, readjudicate the TDIU claim. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kuksova, Kseniya 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.