Citation Nr: 21012721 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 18-54 590 DATE: March 5, 2021 ISSUES 1. Entitlement to service connection for hypertension as a result of exposure to herbicides. 2. Entitlement to service connection for an adjustment disorder with mixed depressed mood and anxiety and unspecified neurocognitive disorder (claimed as memory loss secondary and mild cognitive impairment) as secondary to the service-connected disability of prostate cancer. 3. Entitlement to service connection for atrial fibrillation as result of exposure to herbicides. REMANDED Entitlement to service connection for hypertension as a result of exposure to herbicides is remanded. Entitlement to service connection for an adjustment disorder with mixed depressed mood and anxiety and unspecified neurocognitive disorder (claimed as memory loss and mild cognitive impairment) as secondary to the service-connected disability of prostate cancer is remanded. Entitlement to service connection for atrial fibrillation as result of exposure to herbicide is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1966 to December 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in December 2020. A transcript of that hearing has been associated with the record. At the December 2020 Board Hearing, it was agreed that the record would be held open for an additional 60 days to allow for the submission of additional evidence. However, no additional evidence has been received. For reasons that will be discussed below, further development is required on this Veteran’s claims. Additionally, based on the Veteran’s contentions during the course of this appeal, the Veteran’s claims have been considered on a direct, secondary and presumptive basis. This matter has been advanced on the docket pursuant to 38 C.F.R. § 20.900 (c). Entitlement to service connection for hypertension as a result of exposure to herbicides is remanded. The Veteran asserts that his hypertension is related to exposure to Agent Orange. See March 23, 2018 Supplemental Claim, VA Form 21-526b. If a Veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease manifested to a degree of 10 percent or more, the Veteran is entitled to a presumption of service connection for such disease even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307, 3.309(e). If a veteran did not serve in the Republic of Vietnam during the Vietnam era, actual exposure to an herbicide agent must be verified through the appropriate service department or other sources in order for the presumption of service connection for an herbicide agent related disease under 38 C.F.R. § 3.309 (e) to be applicable. Exposure to an herbicide agent is not presumed in such instances. However, once exposure to an herbicide agent has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309 (e) for herbicide agent related diseases is applicable. Herbicide Exposure (Thailand) VA has determined that there was significant use of herbicides on the fenced-in perimeters of bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam era Department of Defense (DoD) document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." VA Compensation Service has acknowledged that veterans who served in Thailand during the Vietnam era may have been exposed to tactical herbicides procured from Vietnam, or commercial herbicides of much greater strength and with characteristics of tactical herbicides. See Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 177 (2016). The majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhil, Korat, and Don Muang. If a veteran served on one of these bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis. However, this applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. Discussion At the outset, the Board notes that the Veteran's military personnel records show that he was stationed at Ubon Air Force Base in Thailand during active service. The Veteran’s Military Occupational Specialty (MOS) during service was Administrative Specialist. The Veteran has asserted that his office was at the base of the perimeter on the flight line during service. See March 15, 2017 Affidavit; See March 27, 2017 Photograph. The RO has conceded that the Veteran was exposed to Agent Orange. Thus, in-service herbicide exposure is legally presumed. See May 5, 2017 Rating Decision. Regarding presumptive service connection however, the Board notes that hypertension is not a presumptive condition listed in 38 C.F.R. § 3.309(e) and thus, service connection cannot be established on this presumptive basis. The Board notes, however, that in Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993). In this case, the Veteran was afforded an April 23, 2018 Hypertension examination to determine the etiology of his hypertension. A diagnosis of hypertension was confirmed. The examiner noted date of onset as 1993. See April 23, 2018 Hypertension examination, pg. 2. The examiner did not provide an etiological opinion with respect to this Veteran’s hypertension. Additionally, the Board notes that in support of his claim, the Veteran submitted a January 2019 nexus statement from a private physician regarding the etiology of his hypertension. The physician stated in pertinent part that “The National Academies of Sciences, Engineering and Medicine recently presented their “Veterans and Agent Orange” biennial review Update 11 in 2018. This review revisited the link between Hypertension and Agent Orange exposure. Case studies, Vietnam veteran studies environmental and occupational studies were cited in their decision to elevate the association of hypertension and agent orange from “suggestion” to sufficient.” They cited specifically a large Vietnam veteran study funded by the VA where higher rates of self-reported hypertension were found in Vietnam Veterans who had the most risk of being exposed to herbicides including agent orange. While the authors admit the exact mechanism is still being researched there are several hypothesis as to how the herbicides used in the Vietnam War impact blood pressure, which include but not limited to dioxin altering genes involved in blood pressure regulation and the direct role of dioxin on the vessels themselves. Based on the data presented at the above referenced journal, it is more likely than not that the Veteran’s exposure to agent orange contributed to him developing hypertension.” See January 22, 2019 Private Nexus Opinion, (D.R.T., MS., D.O.) The Board observes however that the physician did not provide any specifics, discussion or rationale as to how this data applies to this Veteran. Essentially, the Board observes that in the absence of any specifics, discussion or rationale regarding how the above cited data (presented at the above referenced journal) is linked to this Veteran’s case (e.g., his family history of hypertension, etc.) the private nexus statement is tantamount to a claim for presumptive service connection. However, hypertension is not a presumptive condition listed in 38 C.F.R. § 3.309(e). Notwithstanding, the Board finds that an opinion addressing the etiology of hypertension, with consideration of the National Academy of Sciences (NAS) Veterans and Agent Orange Update 2018, which moved hypertension from the "limited or suggestive evidence" category to the "sufficient evidence of an association" category, must be obtained. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, as referenced above, the Veteran has been provided with a VA examination and no etiological opinion was provided with respect to this Veteran’s hypertension. Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds that an etiological opinion is warranted. Finally, the Board notes that at his December 2020 Board Hearing, the Veteran suggested that his hypertension is aggravated by his service-connected prostate cancer. See December 2020 Board Hearing transcript, pg. 9. Thus, it would be important for the VA examiner to opine whether the Veteran’s hypertension has been aggravated by his service-connected prostate cancer, or any other service-connected disability. For the reasons stated above, the Board finds that remand is warranted to provide an etiological opinion regarding the Veteran’s hypertension on a direct basis, with consideration of Agent Orange Update 2018, and to opine whether the Veteran’s hypertension is caused or aggravated by any service connected disability. The Board is cognizant that the Veteran’s hypertension predates his service-connected prostate cancer and diabetes mellitus, thus the issue would be one of aggravation. Entitlement to service connection for an adjustment disorder with mixed depressed mood and anxiety and unspecified neurocognitive disorder (claimed as mild cognitive impairment and memory loss), secondary to the service-connected disability of prostate cancer is remanded. The Veteran asserts that his adjustment disorder with mixed depressed mood and anxiety and unspecified neurocognitive disorder is secondary to his service-connected disabilities, namely his service-connected prostate cancer. See March 23, 2018VA Form 21-526b, Supplemental Claim. The Veteran was afforded an April 2018 Mental Disorders examination and medical opinion to determine the etiology of his disability. The Veteran was diagnosed with adjustment disorder with mixed depressed mood and anxiety and unspecified neurocognitive disorder. See April 16, 2018 Mental Disorders examination pg. 2. The examiner opined that it was less likely than not that the claimant's memory loss is proximately due to and/or the result of his service-connected prostate cancer. The examiner explained that there is no documentation found by this evaluator in his medical records supporting a connection. The examiner also noted that at least one provider identified several potential medical conditions that would better explain his memory loss issues (and cognitive impairment issues): Evidence reviewed in support of the diagnosis include: Office Visit Note by Raphael Karkowsky on August 19, 2016 (identified that the claimant was positive for depression and memory loss; memory loss due to "Alzheimer's disease versus multi-infarct dementia versus Parkinsonian syndrome verses pseudodementia..." and "Depressed over loss of his mother, retirement from work, moving houses, etc"); Office Visit Note by H Branch Coslett on September 12, 2017 (identified memory loss; normal MOCA but dx with mild cognitive impairment). See April 16, 2018 Medical Opinion, pg. 2. Here, as referenced above, the Board notes that service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disability or injury. 38 C.F.R. § 3.310(a) (2019). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(a) (2019); Allen v. Brown, 7 Vet. App. 439, 448 (1995). While the Veteran’s April 2018 VA examiner considered the causation prong of a secondary service connection claim, the examiner did not provide an opinion on aggravation. The Board notes that the examiner reasoned the Veteran's adjustment disorder with mixed depressed mood and anxiety and unspecified neurocognitive disorder, and specifically his mild memory loss, was not proximately due to his service-connected prostate cancer. The Board finds however that an addendum opinion is needed to determine if the Veteran's psychiatric disorder is aggravated by his prostate cancer. Because the Veteran is also service connected for diabetes mellitus, it would be important for the examiner to opine whether any of the Veteran’s service-connected disabilities proximately caused or aggravated the Veteran’s psychiatric disorder. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Entitlement to service connection for atrial fibrillation as result of exposure to herbicides is remanded. The Veteran contends that his atrial fibrillation results from his exposure to herbicides. As noted above, exposure to Agent Orange has been conceded. Thus, in-service herbicide exposure is legally presumed. Atrial fibrillation is not subject to presumptive service connection based on exposure to herbicides. 38 U.S.C. § 1116; 38 C.F.R. § 3.307, 3.309(e). Nevertheless, as referenced above in this decision, it does not preclude service connection on a direct basis due to herbicide agent exposure. See Combee v. Brown, 34 F.3d 1039, 1942 (Fed. Cir. 1994) Additionally, the Veteran asserts that his atrial fibrillation is proximately caused by his hypertension. The Veteran’s counsel at his December 2020 Board Hearing cites a National Center for Biotechnical Information article which draws an association (increasing risk) between hypertension and atrial fibrillation. See December 2020 Board Hearing transcript, pgs. 7-8. The Board notes that the Veteran has not been afforded an etiological opinion on his atrial fibrillation. In view of the Veteran’s arguments regarding his hypertension and its association with atrial fibrillation, the Board finds that this service connection claim for atrial fibrillation is "inextricably linked together" with the service connection claim for hypertension, because a favorable resolution of the hypertension issue "could have a significant impact" on the outcome of the remaining claim. See Harris v. Derwinski, 1 Vet. App. 180, 183. Here, the Board cannot make a fully-informed decision on the issue of entitlement to service connection for atrial fibrillation, including on a secondary basis, because no VA examiner has provided an etiological opinion on this issue, nor has an examiner opined whether any of the Veteran's service-connected disabilities caused or aggravated his atrial fibrillation. Moreover, this claim is inextricably linked with the hypertension claim, so must be remanded for readjudication at the same time as the hypertension claim. Accordingly, these matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding, private and VA treatment records and associate them with the claims file. 2. With respect to his Hypertension disability, forward the claims file to the VA examiner who conducted the April 23, 2018 examination (or another appropriate examiner if that examiner is unavailable) for an Addendum etiological opinion as to the nature and etiology of this Veteran’s hypertension. If the examiner feels an in-person or video telehealth examination is necessary, another examination should be scheduled. All pertinent evidence of record, including a copy of this remand, must be made available to and reviewed by the examiner, and any indicated tests and studies should be performed. Based on review of the record, the examiner should render a medical opinion with respect to the Veteran's hypertension: Whether it is at least as likely as not (i.e., a 50 percent or better probability) that the Veteran hypertension was a result of any disease, incident, or injury in service, to include any service-connected disability and/or exposure to Agent Orange. *Note: For purposes of this opinion, the examiner is asked to specifically consider and address the National Academy of Sciences (NAS) Veterans and Agent Orange Update 2018, which moved hypertension from the "limited or suggestive evidence" category to the "sufficient evidence of an association" category. Please see January 22, 2019 Correspondence from Dr. R.T., M.S., D.O., Receipt Date, December 2, 2020 re: Agent Orange Update 2018. The examiner may not rely solely on the fact that the Veteran's hypertension condition is not on the presumptive list of diseases associated with herbicide exposure. The examiner must also opine as to whether is at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension is caused or aggravated (defined as any increase in disability) by any service-connected disability, to include prostate cancer. See December 2020 Board Hearing transcript, pg. 9. (Receipt Date, December 15, 2020). All opinions must be supported by a clear rationale and a discussion of the facts and medical principles involved is required. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. With respect to the Veteran’s psychiatric disorder, forward the claims file to the examiner who conducted the April 16, 2018 examination and medical opinion regarding the Veteran’s psychiatric disorder or another appropriate examiner if that examiner is unavailable, as to the nature and etiology of this Veteran’s adjustment disorder with mixed depressed mood and anxiety and unspecified neurocognitive disorder (claimed as mild cognitive impairment and memory loss). If the examiner feels an in-person or video telehealth examination is necessary, another examination should be scheduled. The examiner should review all available treatment records, including a copy of this remand. The examiner should set forth all currently diagnosed psychiatric disorders. Thereafter, the examiner is asked to provide an opinion with respect to the following: (a) Is it at least as likely as not (50 percent probability or greater) that any psychiatric disorder diagnosed during the pendency of this appeal was incurred in or caused by the Veteran's active duty service? (b) Is it at least as likely as not (50 percent or greater probability) that any psychiatric disorder diagnosed during the pendency of this appeal, was caused by his service-connected disabilities, to include prostate cancer and diabetes mellitus. (c) Is it at least as likely as not (50 percent or greater probability) that any psychiatric disorder diagnosed during the pendency of the appeal, was aggravated (defined as any increase in disability) by his service-connected disabilities, to include his prostate cancer and diabetes mellitus. All opinions must be supported by a clear rationale and a discussion of the facts and medical principles involved is required. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. With respect to the Veteran’s atrial fibrillation, schedule the Veteran for an appropriate in-person examination or video telehealth examination, for his atrial fibrillation. All pertinent evidence of record, including a copy of this remand, must be made available to and reviewed by the examiner, and any indicated tests and studies should be performed. The examiners must identify any current atrial fibrillation condition. For each diagnosed condition, the examiner must opine as to whether such is at least as likely as not (50 percent probability or greater probability) that the atrial fibrillation condition was a result of the any disease, incident, or injury in service, to include any service-connected disability and/or exposure to Agent Orange. The examiner may not rely solely on the fact that the Veteran's hypertension condition is not on the presumptive list of diseases associated with herbicide exposure. Is it at least as likely as not (50 percent or greater probability) that any atrial fibrillation condition was caused or aggravated (defined as any increase in disability) by his service-connected disabilities, to include his prostate cancer and diabetes mellitus? (Continued on next page.) Upon completion of the above, and any additional development deemed appropriate, readjudicate the remanded issues. If the benefits sought remain denied, the Veteran and his attorney should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Little, 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.