Citation Nr: 21014284 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-29 613 DATE: March 11, 2021 REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities and as secondary to exposure to herbicides, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1965 until his honorable discharge in August 1967, with service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service Medal and Vietnam Campaign Medal. The Veteran died in August 2016. The Appellant is the surviving spouse. Prior to discussing the appeal at hand, the Board of Veterans’ Appeals (Board) would be remiss if it did not recognize the Veteran’s outstanding military service. The Veteran was clearly a credit to the United States Army and to his family, and his service to his country is greatly appreciated. This matter is before the Board on appeal from an April 2012 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2019, the RO granted substitution status to the Appellant and recognized her as a substitute claimant for the Veteran for purposes of processing the pending claim to completion. This case was previously before the Board in September 2020. The case was remanded to obtain a medical opinion relating to the condition on appeal. For the reasons discussed below, the Board finds there was not substantial compliance with the September 2020 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Regretfully, the Board finds another remand is necessary to obtain an adequate and well-reasoned opinion. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities and as secondary to exposure to herbicides, is remanded. The Veteran seeks service connection for hypertension, to include as secondary to his service-connected coronary artery disease (CAD), diabetes mellitus type II, and posttraumatic stress disorder (PTSD), as well as secondary to exposure to herbicides. As noted above, the Board remanded the Veteran’s claim in September 2020. The Board instructed the AOJ to provide an etiological medical opinion for the claim for service connection for hypertension, to include as secondary to service-connected CAD. The directives specifically indicated the examiner was to address whether the Veteran’s diagnosed hypertension was caused or aggravated by his CAD. Pursuant to the Board’s remand, the AOJ obtained a November 2020 medical opinion, however, this medical opinion does not provide an adequate rationale regarding whether the Veteran’s hypertension was caused by or aggravated by his CAD. Specifically, the Board notes close review of the November 2020 examination shows that while the examiner opined it is less likely than not that the Veteran’s hypertension was caused by his CAD, the examiner failed to adequately address whether aggravation was established. Additionally, the medical evidence of record does not adequately address whether the Veteran’s hypertension is secondary to his service-connected diabetes mellitus and PTSD. Although he underwent VA examinations in June 2015 and the examiners provided opinions against a relationship between his hypertension and these service-connected disabilities, the June 2015 opinions are inadequate because they do not address whether the claimed disorder is caused or aggravated by the identified service-connected disabilities. Finally, the Board finds the November 2020 medical opinion is insufficient to render an informed decision on the issue of whether the Veteran’s hypertension may be related to his herbicide exposure, which is presumed based on his service in the Republic of Vietnam. See 38 C.F.R. § 3.307. As instructed in the Board’s remand, the November 2020 opinion addresses the report by the Institute of Medicine of The National Academies (NAS) titled Veterans and Agent Orange: Update 2012 (2012), as well as the report by the National Academies of Sciences, Engineering, and Medicine (NASEM) titled Veterans and Agent Orange: Update 11 (2018). The November 2020 examiner opined against a relationship between the Veteran’s hypertension and in-service herbicide exposure, based on the examiner’s interpretation of the NASEM report. In so doing, the examiner rationalized, following a detailed discussion of the NASEM report, that the Veteran’s hypertension was less likely than not incurred in or caused by in-service exposure to Agent Orange due to what the examiner interpreted to be a requisite base-line level of exposure (discussed as sprayer versus non-sprayer of herbicides) and statistical ratio needed to establish a causal relationship. The examiner discussed one of the new studies included in the NASEM report, and stated that the study revealed an Odds Ratio (OR) (which the study noted to be based on several factors) greater than 2.0 means there is a significantly increased risk of hypertension due to Vietnam herbicide exposure, to the point of being causally related. The examiner stated for hypertension to be “at least as likely as not” related to herbicide exposure, the OR must be greater than 2.0. The examiner stated an OR of 1.0 shows an association, but not to the extent that there is an increased risk of developing the disease with exposure to the toxin. In other words, according to the examiner, it is not strong enough to show etiology. To illustrate this point, the examiner stated there are many diseases that are associated, but this does not mean that there is an etiological relationship, i.e., one causes another. The examiner observed the OR is a statistic that quantifies the strength of an association between two events, but an “association” is not the same as an “etiology” or cause. The examiner stated the NASEM report did not make this distinction or take this into account in their interpretation of the study. With respect to how the findings in the study apply to the Veteran, the examiner stated the Veteran was a non-sprayer; his DD 214 lists his job in the service as Heavy Vehicle Driver. There are several issues with the examiner’s opinion. Most significantly, VA law does not differentiate between levels of herbicide exposure in Veterans who served in the Republic of Vietnam during the Vietnam era. See 38 C.F.R. §§ 3.307(a)(6); 3.309(e). Regardless of the length of time in the Republic of Vietnam or the nature of the duties involved, a Veteran who had such service is presumed to have been exposed to a herbicide agent and, at least implicitly, to have had sufficient exposure to result in potential adverse health outcomes that may be associated with such exposure. Id. The degree of exposure makes no difference whether the disease at issue is among those for which a presumption of service connection has been established based on such exposure, as set forth in 38 C.F.R. § 3.309(e), or is one that does not qualify for the presumption. Thus, the fact the Veteran did not spray herbicides, makes no difference in terms of the degree of exposure; it is presumed sufficient to result in potential adverse health outcomes from such exposure for service connection purposes. The Board also notes that in the study itself, the authors conclusion does not state the findings ultimately turn on degree of exposure, although that was a factor in terms of demonstrating the “dose-response relationship.” The fact that those with a known high level of exposure had an elevated incidence of hypertension supported the conclusion there is a relationship between such exposure and hypertension, but the authors concluded deployment to the Republic of Vietnam or having sprayed herbicides were both strongly associated with hypertension. Further, the examiner provided no rationale or basis for his conclusion that there must be an OR greater than 2.0 in order to establish an “at least as likely as not” relationship between hypertension and herbicide exposure. Regarding the examiner’s observation that there is a difference between a statistical association and an etiological relationship, the Board realizes the former does not necessarily equate to the latter. But statistical associations are one of the means by which, albeit indirectly, a cause-and-effect relationship can be established. This is why VA based its presumptions of service connection for certain diseases found in prior NAS studies to be associated with herbicide exposure. See Public Law 102-4, the “Agent Orange Act of 1991” (codified in part at 38 U.S.C. § 1116); 77 Fed. Reg. 47924 (August 10, 2012) (Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010); Euzebio v. Wilkie, 31 Vet. App. 394 (2019); see also 38 C.F.R. § 3.309(e). Thus, the fact that only a statistical association may be shown rather than more direct evidence of a biological mechanism for the cause-and-effect relationship is not a basis in itself for concluding that there is insufficient evidence of such a relationship. Also, the examiner did not discuss the significance, if any, of the NASEM report’s finding of some “biologic plausibility” for a relationship between hypertension and dioxin exposure. See Veterans and Agent Orange: Update 11 at 495. In other words, there is some evidence of a “plausible” biological basis for a cause-and-effect relationship between herbicide exposure and hypertension, in addition to the statistical association. The examiner’s opinion does not account for these findings. In light of the above, the Board finds the record does not contain a medical opinion that is sufficient to fairly decide the Veteran’s claim. Therefore, the claim must be remanded to obtain an adequate medical opinion on the Veteran’s behalf. See Stegall, 11 Vet. App. at 268. On remand, an addendum medical opinion must be obtained addressing the issues identified above and be adequate for the Board to make an informed decision on the Veteran’s claim. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. The AOJ should obtain an addendum opinion, by a physician with sufficient expertise who has not previously provided an opinion in this matter, to determine the nature and etiology of the Veteran’s hypertension. The Veteran’s claims file and a copy of this Remand should be provided to the examiner and the examination report should reflect that these items were reviewed. The examiner is asked to provide an opinion as to the following: Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension was: (a) Proximately due to the Veteran’s service-connected CAD, diabetes mellitus type II, and/or PTSD, including medications prescribed for the service-connected disabilities, or (b) Aggravated beyond its natural progression by the Veteran’s service-connected CAD, diabetes mellitus type II, and/or PTSD, including medications prescribed for the service-connected disabilities. In providing the requested opinion, it is noted that “permanent worsening” or increase in severity is not required to demonstrate aggravation. If such aggravation is found to exist, the examiner should provide an assessment, if possible, of the baseline level of impairment of the hypertension prior to aggravation. The examiner should then provide a quantification, if possible, of the level of additional impairment above and beyond its baseline level imposed by the service-connected CAD, diabetes mellitus type II, and/or PTSD. (c) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s hypertension may have been linked to in-service herbicide exposure. In providing the requested opinion on herbicide exposure, the examiner must consider and discuss the report by the Institute of Medicine of The National Academies (NAS) titled Veterans and Agent Orange: Update 2012 (2012), as well as the report by the National Academies of Sciences, Engineering, and Medicine (NASEM) titled Veterans and Agent Orange: Update 11 (2018). The examiner must also review the November 2020 opinion and address that examiner’s conclusions therein. The examiner is asked to reconcile any conflicting medical evidence or opinions of record. A complete rationale for the opinion must be provided. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so, and state what, if any, additional evidence would permit such an opinion to be made. 2. The AOJ must review the addendum opinions to ensure compliance with the Remand directives. If the addendum report is deficient in any manner, take corrective action prior to returning the case to the Board. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Grace Johnk, 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.