Citation Nr: 21014724 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 12-00 988 DATE: March 15, 2021 REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for hypothyroidism (claimed as thyroid gland and hormone replacement) is remanded.   REASONS FOR REMAND The Veteran served honorably on active duty from March 1969 to March 1971, to include service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2010 rating decision. By way of history, the Board has previously remanded these matters in March 2018, June 2019, and October 2020. 1. Entitlement to service connection for a cervical spine disability is remanded. 2. Entitlement to service connection for hypertension is remanded. 3. Entitlement to service connection for hypothyroidism (claimed as thyroid gland and hormone replacement) is remanded. As mentioned above, these claims have previously been remanded by the Board for evidentiary development to assist in adjudication of the Veteran’s claims. Most recently, in October 2020, these matters were remanded to the AOJ with directives to obtain new VA examinations and medical opinions to address the nature and etiology of the Veteran’s disabilities. In November 2020, the Veteran underwent these examinations. Regarding the hypothyroidism claim, the VA examiner opined that the condition was less likely than not incurred in or caused by any in-service injury, event, or illness. The VA examiner reasoned that “[t]he Veteran has a diagnosis of hypothyroidism and is receiving replacement treatment[.] It is less likely as not that this condition was incurred in service since the STRs are silent on the diagnosis or treatment of this condition in service. It is also less likely as not that his hypothyroidism is caused or aggravated by exposure to Agent Orange since this condition is not a presumptive diagnosis of Agent Orange exposure.” See November 2020 C&P exam. Regarding the Veteran’s cervical spine disability, the VA examiner also provided a negative nexus opinion. The examiner stated that “[r]ecords show that the Veteran had a pre-existing cervical spine injury prior to enlistment. Both enlistment and separation exams recorded a normal spine. It is less likely as not that the Veteran incurred a cervical spine injury or aggravated a pre-existing cervical spine injury beyond its natural progression in service. It is noted that the Veteran recalls carrying heavy equipment up the ladder in service, but this activity should not place special stress to the cervical spine. It is also noted that he had one episode of treatment with Valium for ‘stiff neck’ five days into active service, however, the rest of his STRs are silent on further neck complaints or treatment. Thus, an aggravation of a pre-existing neck condition beyond its natural progression is not established.” Regarding the Veteran’s hypertension claim, the VA examiner opined “[i]t is less likely as not that this condition was incurred in service since the STRs are silent on the diagnosis or treatment of this condition in service. It is also less likely as not that his hypertension was due to or aggravated by his service-connected diabetes mellitus since there is no diagnosis of diabetic nephropathy.” The Board finds that the November 2020 VA opinions are inadequate and as such, another remand is required. Firstly, the VA examiner’s opinions rely heavily on the absence of evidence in the Veteran’s service treatment records. For example, as to the cervical spine, the Veteran informed an October 2018 VA examiner that he strained his neck in service and had neck pain since then. This VA examiner impermissibly relied on an absence of documented symptoms without explaining why, as a medical matter, that the Veteran would have sought treatment or complained of the condition, or why an absence of treatment (as opposed to symptoms) was otherwise medically significant. See, McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). Secondly, the November 2020 VA examiner’s rationale are conclusory and do not provide sufficient reasoning to support the conclusion that there is no link between the Veteran’s claimed disabilities and his active service. It is clear from the VA examiner’s statements that the examiner did not consider the Veteran’s lay statements or contentions regarding his physical activities during service or his exposure to herbicide agents during his active service in the Republic of Vietnam, and did not discuss such in the opinions or accompanying rationale. The VA examiner’s failure to consider a Veteran’s testimony, which is relevant evidence, when formulating the opinion, renders that opinion inadequate. See McKinney, 28 Vet. App. at 30. Additionally, for the Veteran’s claim for hypertension, the VA examiner did not address whether the Veteran’s current condition is related to the Veteran’s conceded exposure to herbicide agents (including Agent Orange) in Vietnam. See February 2020 VA memorandum. A National Academy of Sciences (NAS) study found “limited or suggestive evidence” of an association between hypertension and herbicide agent exposure. Since the last Board remand, a more recent study, NAS Veterans and Agent Orange: Update 11 (2018), again upgraded hypertension from “limited or suggestive” evidence of an association with herbicide agent exposure to the category of “sufficient” evidence. Although VA has not established a presumption of service connection for hypertension, this evidence should be considered. Further, for the Veteran’s claim of a cervical spine disability, the VA examiner did not use the correct burden of proof to assess the Veteran’s current disability. Because the Veteran’s cervical spine condition was not noted at entrance, the examiner was required to address whether the condition clearly and unmistakably existed prior to service, and whether the condition was not clearly and unmistakably aggravated during service. Given this, a remand for a new medical opinion is required. Horn v. Shinseki, 25 Vet. App. 231 (2012). Accordingly, on remand, the AOJ should obtain addendum medical opinions adequately addressing the nature and etiology of the Veteran’s claimed disabilities. These matters are REMANDED for the following action: 1. Obtain addendum medical opinions from an appropriate VA clinician addressing the nature and etiology of the Veteran’s cervical spine disability The examiner should opine on whether the Veteran’s cervical spine disability clearly and unmistakably pre-existed his active military service, and if so, whether any increase in severity was clearly and unmistakably (undebatably) due to its natural progression. In answering these questions, the examiner is asked to consider the statements from the Veteran indicating that symptoms started during service. The examiner should specifically discuss the Veteran’s statements regarding his physical activities while in service, and how they may or may not have aggravated his cervical spine disability. See VBMS, document labeled NOD, receipt date 12/03/2010, page 1 of 2; see also VBMS, document labeled Hearing Transcript, receipt date 03/28/2013, pages 2-28 of 29. The examiner is asked to explain why his statements make it more or less likely that a current condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran’s recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. 2. Obtain addendum medical opinions from an appropriate VA clinician addressing the nature and etiology of the Veteran’s hypertension The examiner should opine on the following: (a.) Whether it is at least as likely as not that the Veteran’s current hypertension was incurred in, aggravated by, or otherwise related to his active military service, specifically, his exposure to herbicide agents in the Republic of Vietnam. In answering this question, the examiner is asked to disregard whether the disorder is one for which a “presumption” is established and, instead, to answer whether the medical condition is a result of Agent Orange exposure based on all pertinent evidence and information, even though it is not on the list of “presumptive” diseases. Along with other relevant evidence, the examiner should comment on the NAS Veterans and Agent Orange: Update 11 (2018), which upgrades hypertension from the category of “limited or suggestive” evidence of an association with herbicide agent exposure the category of “sufficient” evidence. (b.) Whether the current condition is at least as likely as not (1) proximately due to a different medical condition, or (2) aggravated beyond its natural progression by a different medical condition, especially diabetes. If so, the examiner is asked to identify the primary medical condition. 3. Obtain addendum medical opinions from an appropriate VA clinician addressing the nature and etiology of the Veteran’s hypothyroidism. The examiner should opine on whether the diagnosis is at least as likely as not related to an in-service injury, event, or disease, including his confirmed exposure to herbicide agents (Agent Orange). In answering this question, the examiner is asked to disregard whether the disorder is one for which a “presumption” is established and, instead, to answer whether the medical condition is a result of Agent Orange exposure based on all pertinent evidence and information, even though it is not on the list of “presumptive” diseases. Along with other relevant evidence, the examiner should comment on the NAS Veterans and Agent Orange: Update 11 (2018), which upgrades hypertension from the category of “limited or suggestive” evidence of an association with herbicide agent exposure the category of “sufficient” evidence. Corey Bosely Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. M. Lowman, 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.