Citation Nr: 21013537 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 09-08 515 DATE: March 9, 2021 REMANDED Entitlement to service connection for an eye disability, to include as secondary to a service-connected disability is remanded. Entitlement to service connection for hypertension, to include herbicide agent exposure and as secondary to a service-connected disability is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to a service-connected disability is remanded. Entitlement to service connection for erectile dysfunction (ED), to include as secondary to a service-connected disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from November 1965 to November 1967, including verified service in the Republic of Vietnam from May 1966 to June 1967. His awards include a Purple Heart. This appeal arises from a May 2008 rating decision, denying service connection for an eye disability. This appeal further arises from an August 2010 rating decision, denying service connection for hypertension, GERD and ED. In relevant part, in May 2018, the Board issued a decision denying the appeal claims. On appeal, the U.S. Court of Appeals for Veterans Claims (CAVC) issued an April 2019 Order that vacated the Board’s prior May 2018 decision, and remanded the matter to the Board. The Court’s Order granted an April 2019 Joint Motion for Remand (JMR) filed by both VA and Appellant (“the Parties”). The appeal was returned the Board for further adjudication and consideration. Accordingly, in December 2019, the Board awarded an increased rating of 50 percent for PTSD, denied service connection for a neck disability and denied reopening a previously denied service-connection claim for a bilateral hand disability. The Board also remanded the issues of service connection for an eye disability, hypertension, GERD, ED and left-sided carpal tunnel syndrome (CTS), as well as claims for earlier effective dates for TDIU and DEA to the AOJ for additional development and consideration. On remand, an April 2020 rating decision granted the claims for earlier effective dates since August 10, 2007, for the awards of both a TDIU and Dependents’ Educational Assistance under 38 U.S.C. chapter 35 (DEA). In a September 2020 rating decision, the RO granted service connection for moderate left CTS and mild ulnar neuropathy at the wrist and elbow (claimed as neuropathy of the left arm). As these determinations constitutes a full grant of the benefits sought as to those claims, they are no longer in appellate status. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). The remaining issues on appeal are for service connection for an eye disability, hypertension, GERD and ED. The file is again before the Board for further appellate review. 1. Entitlement to service connection for an eye disability, to include as secondary to a service-connected left shoulder disability. The Veteran attributes his current eye disability to service and/or secondary to a service-connected disability, including his left shoulder disability. The Board’s December 2019 remand indicated that a medical opinion was needed on the etiology of the Veteran’s claimed eye disability, particularly to determine whether he injured his eye from an in-service explosion. In this regard, the JMR had indicated that the Board should consider a separate May 2017 VA examination report regarding residuals of a TBI that noted the examiner’s belief that the Veteran was concussed during service. In this regard, a September 2017 rating decision granted service connection for TBI, but included as part of his service-connected PTSD evaluation. On remand, a December 2020 VA eye examiner diagnosed several left and right eye conditions. The examiner provided vague medical comments that appeared to be against the possibility of a direct nexus to service, but with conclusory rationales, such as noting his bilateral vitreous floater was due to the aging process. The examiner’s comments lacked thorough discussion of the possibility that his current eye conditions were due an in-service eye injury. However, there was also conflicting medical commentary as the examiner noted, “Intraocular Implant, left eye - had to be done due to blow to left brow and eye causing posterior subcapsular cataract.” As pointed out by the Veteran’s private attorney, in a February 2021 brief, additional medical opinion is necessary on why the Veteran’s eye conditions are due to the aging process rather than an in-service injury, to include the Veteran’s in-service TBI, for which he is already service-connected. Further, if a Veteran engaged in combat with the enemy, and it is claimed that a disease or injury was incurred in such combat, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). To establish service connection, however, there must be medical evidence of a nexus between the current disability and the combat injury. See Dalton v. Nicholson, 21 Vet. App. 23 (2007); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996). In such cases, not only is the combat injury presumed, but so are the consequences of that injury at least in service. See Reeves v Shinseki, 682 F.3d 988 (Fed. Cir. 2012). In this case, the Board observes that a service personnel record lists that the Veteran was awarded the Purple Heart Medal for wounds received in combat action, in support of the forces of the Republic of Vietnam in their struggle with the insurgent communist (Viet Cong) forces. He also had a military occupational specialty of Rifleman. Especially given his service-connected TBI, his assertions are consistent with the circumstances of his service. With the foregoing in mind, the Board finds the Veteran’s assertions competent, credible, and sufficient to establish the occurrence of an eye injury during service. 38 U.S.C. § 1154 (b). When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Another medical opinion on the etiology of the Veteran’s eye disability is necessary. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected PTSD, SFWs, or medication taken for service-connected disabilities. The Veteran asserts he is entitled to service connection for hypertension, to include as secondary to service-connected disabilities, and/or medication taken for service-connected disabilities. The Board’s December 2019 remand indicated that a medical opinion was needed on whether the Veteran’s medications for his service-connected disabilities aggravated his hypertension. In the JMR, the parties agreed that the Board did not sufficiently address whether service connection for hypertension is entitled to compensation based on a theory of aggravation. On remand, an August 2020 VA physician noted several medications for his hypertension, but provided a confusing medical and conflicting medical opinion. The same VA physician provided an addendum opinion in October 2020 for clarification, opining, “HTN [(hypertension)] is not caused by allopurinol or flonase. The veteran s HTN is less likely than not due to medications that veteran takes for his service connected conditions. Allopurinol, Flonase [and] vitamins are not known to lead to aggravation of HTN. The diagnosed condition of HTN is therefore less likely aggravated by medications that the veteran takes for his service connected conditions.” As the Veteran’s private attorney’s highlights, the examiner did not consider all of the Veteran’s prescribed medications for his service-connected disabilities. For instance, an August 2020 VA treatment note revealed the Veteran has recently had 16 active medication prescriptions. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In light of the above, the Board finds this medical opinion to not be in compliance with the Board’s remand directive. A remand by the Board confers on a Veteran the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008). It is also necessary for a medical opinion to consider the possibility that his hypertension is related to presumed in-service herbicide exposure. The Veteran had verified service in the Republic of Vietnam from May 1966 to June 1967 during the Vietnam era. See Service Personnel Records and DD Form 214. So, he is presumed to have been exposed to herbicide agents per 38 C.F.R. § 3.307 (a)(6)(iii). The National Academy of Sciences, Engineering, and Medicine (NAS) recently published updated information about the relationship between a person’s exposure to Agent Orange and subsequent development of hypertension. It upgraded the relationship between hypertension and Agent Orange exposure from “limited or suggestive” to “sufficient,” indicating that “there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. See National Academies of Sciences, Engineering, and Medicine 2018, Veterans and Agent Orange: Update 11 (2018) at 10, 487-498. Accordingly, the Board finds another VA medical opinion is needed from another physician to determine the etiology of the Veteran’s hypertension, including as due to his presumed herbicide exposure. (Continued on the next page)   3. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected PTSD, SFWs, or medication taken for service-connected disabilities. 4. Entitlement to service connection for ED, to include as secondary to service-connected PTSD, SFWs, or medication taken for service-connected disabilities. The JMR indicated that the Board should consider the possibility that the Veteran’s GERD and ED were aggravated by his hypertension medication. Concerning this, a May 2010 VA examination report noted the Veteran’s blood pressure medications can sometimes aggravate his reflux. Likewise, a June 2016 VA medical examiner’s opinion noted the Veteran’s history of hypertension and related medication treatment is likely the cause of his ED. Because the claims for secondary service connection for GERD and ED are inextricably intertwined with the underlying claim for service connection for hypertension, they must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Obtain a VA medical opinion by an appropriate clinician, and who has not previously provided an opinion in this appeal, to determine the nature and etiology of his eye disability. After review of the claims file, the examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current eye disability is caused by or otherwise etiologically related to his active service. In providing the opinion, the examiner must consider that an in-service eye injury during his service in the Vietnam War is an established fact. Rationale must be provided for the opinion proffered. Also reconcile any competent lay statements by the Veteran on the history of his symptoms during and following service. 2. Obtain a VA medical opinion by an appropriate clinician, and who has not previously provided an opinion in this appeal, to determine the nature and etiology of hypertension. After review of the claims file, the examiner should opine as to the following: (A) Whether it is at least as likely as not that the Veteran’s hypertension is related to presumed exposure to herbicide agents during service. In rendering an opinion, please consider the November 2018 NAS study finding sufficient evidence of an association between hypertension and herbicide exposure. (B) Whether it is at least as likely as not that the Veteran’s hypertension was: (i) caused by his service-connected PTSD, SFWs, or medication taken for any service-connected disability; or (ii) aggravated by his PTSD, SFWs, or medication taken for any service-connected disability. A complete rationale should be provided for all opinions rendered. Also reconcile any competent lay statements by the Veteran on the history of his symptoms during and following service. (Continued on the next page)   3. After completing the above and any additional development deemed appropriate, readjudicate all the claims remaining on appeal. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Biswajit Chatterjee, 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.