Citation Nr: 21021386 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 14-34 560A DATE: April 12, 2021 REMANDED Entitlement to service connection for hypertension, to include as secondary to herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1988 to July 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In an August 2017 decision, the Board denied the claim for service connection for hypertension. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court), which granted a Joint Motion for Remand (JMR) and vacated the Board’s August 2017 decision, in February 2018. In a May 2018 decision, the Board conceded that the Veteran had been exposed to herbicide agents, specifically Agent Orange, during his active duty deployment to Johnston Island and remanded the service connection claim for hypertension. The Board remanded this case in February 2020 again for further development. The Board finds that additional development of the claim is necessary prior to appellate review. In its February 2020 decision, the Board directed the RO to consider the 2018 study by the National Academy of Sciences (NAS) providing that there was sufficient evidence of a link between Agent Orange and other herbicides used during the Vietnam war and hypertension, and informed the examiner that an opinion based on the fact that a claimed disease was not on VA’s list of recognized diseases associated with herbicide agent exposure would be deemed inadequate. In a March 2020 VA examination, the September 2018 VA examiner opined that it was less likely than not that the Veteran’s hypertension was due to his active duty service, to include his in-service exposure to Agent Orange and more likely related to the Veteran’s obesity, a well-established risk factor for hypertension. The examiner noted that the 2018 NAS study had found sufficient evidence of an association between Agent Orange and hypertension, but found that this data was inconclusive in establishing causality and only established a strong correlation. The examiner cited information from the VA Office of Research and Development that specifically noted that “Veterans of the Army Chemical Corps” study used to support possible link between hypertension and Agent Orange was not definitive. Further, the examiner noted that hypertension had not been recognized as a presumptive condition related to Agent Orange exposure based on these findings. The examiner also stated that upon further medical research, she could find no medical data to support that herbicides exposure in general had any association with the development of hypertension. In a September 2020 argument by the Veteran’s representative, Mr. Chisholm contended that the March 2020 VA examination opinion was inadequate because (1) it was based on the fact that hypertension was not a presumptive condition related to Agent Orange exposure; (2) it was internally contradictory as the examiner found no medical data supporting an association between herbicides exposure and hypertension, even though she acknowledged that the 2018 NAS study; (3) it appeared the examiner was using a higher standard to determine whether the Veteran’s hypertension was due to Agent Orange and to discount the 2018 NAS study; (4) the history of the NAS studies showed increasing evidence of association between herbicides and development of hypertension; and (5) while the examiner found that the Veteran’s hypertension was most likely caused by his obesity, she did not address whether his obesity was due to or aggravated by his service-connected disabilities. In light of the September 2020 arguments and the fact that the March 2020 VA opinion appears to be based on, in part, the fact that hypertension is not presumptively due to exposure to Agent Orange, the Board finds that the March 2020 VA opinion is inadequate and a supplemental opinion is warranted. The matters are REMANDED for the following action: Obtain a supplemental VA opinion from an appropriately qualified examiner, who has not already provided an opinion in the Veteran’s service connection claim for hypertension, regarding the nature and etiology of the Veteran’s hypertension. Only if deemed necessary to provide an opinion, should the Veteran be afforded a new VA examination. Provide the claims file, including a copy of this REMAND, to the examiner for review. The examiner should address (a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension began during or is etiologically related to his active duty service, to include as due to his conceded herbicide agent exposure. (b) Whether it is at least as likely as not (50 percent probability or greater) that (1) the Veteran’s service-connected disabilities, to include diabetes mellitus, type II, major depressive disorder, and residuals of traumatic brain injury, caused or aggravated the Veteran’s obesity; (2) if so, whether the obesity or the aggravation of obesity as a result of service-connected disability was a substantial factor in causing hypertension; and (3) whether the hypertension would not have occurred but for the obesity caused by service-connected disability or the obesity aggravated by service-connected disability. The Board appreciates the examiner’s patience in addressing this multistep question. The examiner is advised that an opinion based on the fact that hypertension is not on VA’s list of recognized diseases presumptively associated with herbicide agent exposure will be deemed inadequate. (Continued on the next page)   The examiner must address the 2018 study provided by the National Academic of Sciences finding that “[t]he latest in a series of congressionally mandated biennial reviews of the evidence of health problems that may be linked to exposure to Agent Orange and other herbicides used during the Vietnam War found sufficient evidence of association for hypertension.” See National Academy of Science, Hypertension Upgraded in Latest Biennial Review of Research on Health Problems in Veterans That May be Linked to Agent Orange Exposure During Vietnam War (Nov. 15, 2018). All opinions expressed must be accompanied by a clear and complete rationale. Jenna Brant Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Ko, 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.