Citation Nr: 21015591 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-14 286 DATE: March 17, 2021 REMANDED Service connection for a back condition is remanded. Service connection for a bilateral hip condition is remanded. Service connection for hypertension (HTN), to include as due to herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1970 to January 1972. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision issued by the Department of Veterans’ Affairs (VA) Regional Office (RO) in Waco, Texas. 1. Service connection for a back condition is remanded. 2. Service connection for a bilateral hip condition is remanded. The Veteran contends that he has experienced symptoms of his back condition and bilateral hip condition since service and that he fell during service injuring his back and hips. The Board finds remand is necessary to afford the Veteran a VA examination to determine the nature and etiology of any back condition and/or bilateral hip condition and the relation, if any, to service. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In particular, the Veteran’s treatment records contain competent evidence of cervical spine arthritis; pain in the back, neck, and hips; and cervical lumbar strain. See September 1983 non-government treatment records; see also February 1984 VA treatment records; see also August, November, and December 1985 non-government treatment records. The Board notes the Veteran’s treatment records also reference a motor vehicle accident in 1983 with complaints of back and neck pain following the accident. See July and September 1983 non-government treatment records. The Veteran stated that he had an in-service fall injuring his back and hips. His DD-214 reflects he served as a wireman, which the Veteran stated included climbing telephone poles and stringing wires for field telephones. See December 1984 Statement in Support of Claim. While the Veteran’s service treatment records (STRs) lack any mention of a fall or complaints of injury to the back or hips, there is one mention of pain in the pelvis in 1971. Additionally, the Veteran also stated that he has experienced symptoms related to his back and hip conditions since service. The Board has no reason to currently doubt the veracity of the Veteran’s statements regarding an in-service fall or experiencing symptoms since service. See Miller v. Wilkie, 32 Vet. App. 249 (2020). The evidence of record, however, is insufficient to determine the nature and etiology of any back condition and/or bilateral hip condition and whether it is related to service, to include the contended in-service fall. Thus, the Board finds VA’s duty to assist has been triggered, and the Veteran must be afforded a VA examination for his service connection claims for a back condition and bilateral hip condition. 3. Service connection for HTN, to include as due to herbicide agent exposure, is remanded. The Veteran has contended that his HTN is the result of his active service, which includes service in Vietnam. The Board finds remand is necessary to afford the Veteran a VA examination to determine the nature and etiology of any HTN disorder and its relation, if any, to service, to include as due to herbicide agent exposure. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Although VA has not conceded a presumptive relationship between hypertension and Agent Orange, the National Academy of Sciences (NAS) has placed hypertension in a “sufficient evidence” category as of the 2018 Update. That is, although hypertension has not been added to the list of diseases presumptively associated with exposure to herbicide agents, the NAS has recognized “sufficient evidence” of an association between the two such that a correlation cannot be ruled out with reasonable confidence. The Federal Circuit has recently found that this NAS 2018 Update is in the constructive possession of the VA and, therefore, must be considered in the adjudication of appeals where it may be implicated. See Euzebio v. McDonough, No. 2020-1072, 2021 U.S. App. LEXIS 6188 (Fed. Cir. Mar. 3, 2021). As such, the Board finds that a VA opinion regarding the etiology of the Veteran’s HTN which considers his contended exposure to herbicide agents is needed before a decision may be rendered on the claim. Thus, the Board finds VA’s duty to assist has been triggered, and the Veteran must be afforded a VA examination for his service connection claim for HTN, to include as due to herbicide agent exposure. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination before an appropriate examiner to determine the nature and etiology of any back and/or hip condition found. The claims file and this remand should be made available to the examiner for review, which should be noted in the requested report. The examiner shall provide an opinion addressing: (a.) Whether the Veteran has a current back and/or hip condition or had a back and/or hip condition at any point during the course of his claim; If a diagnosis cannot be provided but the Veteran has back and/or hip pain that causes functional impairment of earning capacity, then he should be considered to have a “disability” for VA purposes and for purposes of providing the requested the opinions below. (b.) For every back and hip disability found, is at least as likely as not (50 percent or greater probability) related to service, to include the Veteran’s contended in-service fall; In consideration of this inquiry, the examiner is directed to address the Veteran’s statements of an in-service fall injuring his back and hips versus his service treatment records lacking mention of a fall or injury to the back and/or hips. The examiner is directed to address the Veteran’s 1971 pelvis pain. The examiner is also directed to address the Veteran’s motor vehicle accident in 1983. (c.) If the Veteran has the specific diagnosis of back or hip arthritis, the examiner shall opine whether it is at least as likely as not (50 percent or greater probability) the Veteran’s arthritis (i) began during active service, (ii) manifested within one year after discharge from service, or (iii) was noted during service with continuity of the same symptomatology since service. The examiner is directed to address the Veteran’s statement of experiencing symptoms related to his back and hip since separation. The examiner must provide a complete rationale for any opinion expressed, based on the examiner’s clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. Schedule the Veteran for a VA examination before an appropriate examiner to determine the nature and etiology of his hypertension. The claims file and this remand should be made available to the examiner for review, which should be noted in the requested report. The examiner shall provide an opinion addressing: (a.) Whether the Veteran’s hypertension disability (i) began during active service, (ii) manifested within one year after discharge from service, (iii) was noted during service with continuity of the same symptomatology since service, or (iv) is at least as likely as not (50 percent or greater probability) related to service, to include as due to herbicide agent exposure during service in Vietnam. In so rendering the opinion, the examiner is reminded that the fact that hypertension is not on the presumptive list of conditions due to herbicide agent exposure cannot, by itself, be the sole basis for a negative nexus opinion. Rather, the examiner should consider the Veteran’s specific military history, medical history, risk factors, and any other circumstances deemed relevant by the examiner in rendering an opinion. Further, the examiner is also asked to consider “Update 2018” from the National Academy of Sciences that indicates “sufficient evidence” of an association between hypertension and herbicide agent exposure in rendering an opinion. See NAS 2018 Update. The examiner should consider all medical and lay evidence of record, to include the Veteran’s statement that he has had hypertension since service. The examiner must provide a complete rationale for any opinion expressed, based on the examiner’s clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. After the above development, and any other development deemed necessary, readjudicate the claims. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.C. Allen, 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.