Citation Nr: 21014385 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 14-39 905 DATE: March 12, 2021 REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for erectile dysfunction is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from March 1968 until his honorable discharge in October 1969. He had service in the Republic of Vietnam, where his awards and decorations include the Combat Action Ribbon, Vietnam Service Medal, Vietnam Cross of Gallantry Medal with Palm, and the Republic of Vietnam Campaign Medal. The Board thanks the Veteran for his service to our country. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. These matters were previously before the Board in May 2018 and August 2020. Most recently, in August 2020, the Board denied entitlement to service connection for (1) a psychiatric disability, (2) a left knee disability, (3) a right foot disability, (4) a left foot disability, and (5) entitlement to an initial disability rating in excess of 10 percent for the service-connected coronary artery disease (CAD) for the period on appeal prior to December 10, 2010 and entitlement to a disability rating in excess of 30 percent for the service-connected CAD for the period on appeal after December 10, 2010; the Board granted entitlement to service connection for right knee arthritis; and the Board remanded entitlement to service connection for (1) hypertension and (2) erectile dysfunction for medical opinions. A November 2020 rating decision granted service connection for status post right knee replacement with an evaluation of 100 percent effective December 9, 2010. An evaluation of 30 percent was assigned effective April 1, 2011. The issues of entitlement to service connection for hypertension and entitlement to service connection for erectile dysfunction are once again before the Board. For the reasons discussed below, the Board finds there was not substantial compliance with the August 2020 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Regretfully, the Board finds another remand is necessary to obtain an adequate opinion. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for hypertension is remanded. The Veteran is seeking service connection for hypertension. Specifically, he contends his hypertension stems from his active duty service, to include herbicide exposure during his service in the Republic of Vietnam. See November 2010 and December 2010 VA Forms 21-4138 Statement in Support of Claim. Initially, the Board notes during the pendency of his claim, the issue of entitlement to service connection for hypertension as secondary to the Veteran’s service-connected coronary artery disease (CAD) was raised by the evidence. The Board notes it is required to consider all theories of entitlement to service connection. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), see also Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining the Board must consider all potential theories of entitlement raised by the evidence). The Veteran was afforded a Logistics Health Incorporated (LHI) Hypertension examination in June 2019. The examiner opined the etiology of the Veteran’s hypertension was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected CAD. The examiner explained the Veteran’s hypertension is a separate entity from the service-connected CAD and the conditions are not related. Regarding the aggravation prong of service connection, the examiner opined the two conditions are not related. The Board finds the June 2019 medical opinion is insufficient to render an informed decision on whether the Veteran’s hypertension may be related to his service-connected CAD. Specifically, the Board notes close review of the June 2019 examination report 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, in the August 2020 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain an etiological medical opinion on whether the hypertension is related to the Veteran’s service on a direct basis. The Veteran was afforded an LHI Hypertension examination in November 2020. The examiner offered a negative nexus opinion stating there was no evidence of hypertension in service. The Board finds this opinion is insufficient to render an informed decision on the issue of direct service connection. The opinion fails to address 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. The Board takes judicial notice that in November 2018, the National Academies of Science, Engineering and Medicine (NASEM) issued Veterans and Agent Orange: Update 11 (2018), and the update addresses whether there is an association between exposure to herbicide agents and hypertension. In the Update 11 (2018) report, NASEM concluded there is “sufficient evidence of an association” between hypertension and herbicide exposure. As the November 2020 medical opinion did not address this report, the Board finds a remand is required for addendum opinion. 2. Entitlement to service connection for erectile dysfunction is remanded. The Veteran is seeking service connection for erectile dysfunction, to include as secondary to his service-connected CAD, and as secondary to his diagnosed hypertension. The Veteran was afforded a VA Male Reproductive System Conditions examination in May 2013. The examiner opined the etiology of the Veteran’s erectile dysfunction is less likely than not caused by or a result of CAD. The examiner stated the Veteran’s erectile dysfunction is most likely caused by, or a result of, several risk factors to include tobacco abuse, alcohol use, dyslipidemia, age, hypertension, etc. As noted in the August 2020 Board remand, the Veteran’s erectile dysfunction may be associated with his hypertension. The May 2013 VA examiner suggested hypertension is a risk factor for erectile dysfunction. Therefore, the issue of service connection for erectile dysfunction is inextricably intertwined with the remanded issue of hypertension. Accordingly, remand is also warranted for the issue of erectile dysfunction pending resolution of the Veteran’s hypertension claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Moreover, the Board finds the record does not contain sufficient medical opinions to fairly decide the Veteran’s claim. The May 2013 VA opinion is not supported by sufficient rationale and does not consider all pertinent evidence of record. Therefore, the claim must be remanded to obtain adequate medical opinions on the Veteran’s behalf. See Stegall, 11 Vet. App. at 268. On remand, addendum opinions 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. Obtain any relevant VA treatment records from August 2020 to the present. 2. The AOJ should obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s hypertension. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. 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: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension is: • Proximately due to the Veteran’s service-connected CAD, including medications used to treat his service-connected CAD, or • Aggravated beyond its natural progression by the Veteran’s service-connected CAD, including medications used to treat his service-connected CAD. In providing the requested opinions, 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 clinician 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. (b.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension was either incurred in, or is otherwise related to, the Veteran’s military service, to include exposure to herbicides. • The reviewing clinician should specifically consider the Veterans Agent Orange: Update 11 (2018) from the National Academies of Science, Engineering and Medicine. 3. The AOJ should obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s erectile dysfunction. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. 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: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s erectile dysfunction is: • Proximately due to the Veteran’s diagnosed hypertension, including medications used to treat his hypertension, or • Aggravated beyond its natural progression by the Veteran’s diagnosed hypertension, including medications used to treat his hypertension. In providing the requested opinions, 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 erectile dysfunction prior to aggravation. The clinician should then provide a quantification, if possible, of the level of additional impairment above and beyond its baseline level imposed by the diagnosed hypertension. 4. A complete rationale for the opinions must be provided. If the examiners 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. 5. The AOJ must review the addendum opinions to ensure compliance with the Remand directives. If any 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.