Citation Nr: 21022249 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 14-19 816 DATE: April 15, 2021 REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities and/or exposure to herbicide agents, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from June 1964 to August 1968, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The appeal was previously before the Board most recently in April 2019, at which time the Board remanded the issue to the agency of original jurisdiction (AOJ) in order to afford the Veteran a new VA examination for the claimed condition and to obtain a nexus opinion supported by a sound rationale. The matter has now been returned to the Board for further appellate consideration. However, for the reasons discussed below, the Board finds that another remand is warranted. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities and/or exposure to herbicide agents, is remanded. Although it sincerely regrets the additional delay, the Veteran’s claim for service connection for hypertension requires further development in the form of a new medical opinion. Consistent with the directives of the Board’s April 2019 remand, the Veteran was afforded a new VA examination for his hypertension. In May 2019, a VA physician examined the Veteran and provided negative nexus opinions for direct and secondary service connection. See VA examination dated May 13, 2019. The examiner opined that the Veteran’s hypertension was less likely than not incurred in or caused by the Veteran’s active duty military service, including exposure to herbicide agents. In rendering the opinion, he addressed the findings of the National Academies of Science and their reclassification of hypertension and its correlation to exposure to herbicide agents from “limited or suggestive” to “sufficient,” as well as subsequent scientific findings relevant to the relationship between exposure to herbicide agents and the development of hypertension. In short, the examiner reasoned that, “[W]hile there is now a felt positive association between agent orange exposure and [hypertension,] there is still no evidence of a causative relationship between agent orange and [hypertension;] and it is medically known an association does not mean or equal a causation.” However, the Board finds this rationale inadequate for the purpose of adjudicating the Veteran’s claim for service connection. Specifically, the opinion seems to be based on the merits of the scientific findings related to the association between exposure to herbicide agents and the subsequent development of hypertension, rather than on the Veteran’s personal service and medical history. Regarding secondary service connection, the examiner opined that the Veteran’s hypertension is less likely than not proximately due to or the result of the Veteran’s service-connected disabilities, reasoning that the Veteran’s diagnosis of hypertension in 1998 predates the diagnoses of the Veteran’s service-connected disabilities that could potentially have caused or exacerbated his hypertension. Concerning the Veteran’s other service-connected disabilities, including prostate cancer residuals, tinnitus, left inguinal hernia, and scars of the abdomen, the examiner noted that such disabilities “are not medically or scientifically known to be causative factors” of hypertension. Finally, the examiner determined that the medical evidence of record did not provide any indication that the Veteran’s service-connected disabilities aggravated his hypertension beyond its natural progression. However, in so finding, the examiner did not address whether the Veteran’s hypertension was caused or aggravated by treatment for his service-connected disabilities or whether such disabilities or their treatment may have resulted in obesity, which may have acted as an intermediate step between a service-connected condition and the diagnosis of hypertension, per the Board’s April 2019 remand directives. The Board must ensure compliance with the terms of its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand confers on the veteran, as a matter of law, the right to compliance with the remand orders). In the present case, the Board finds that there has not been substantial compliance with its April 2019 remand directives. Therefore, another remand is warranted in order to procure a new medical opinion, supported by a sound rationale, before the Board can render a fully-informed decision on the merits of the Veteran’s appeal. Accordingly, the matter is REMANDED for the following action: 1. Send the Veteran’s claims file to an appropriate clinician for review and for the opinions sought regarding the Veteran’s claim for service connection for hypertension. ONLY IF another examination is deemed necessary to answer the questions below, one should be scheduled. The clinician is asked to address the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension was caused by, or is otherwise etiologically related to, his active duty military service? (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension was caused by his presumed exposure to herbicide agents while serving in Vietnam? In responding to this question, the clinician is asked to consider, and address as necessary, the findings of the National Academies of Science and their reclassification of hypertension and its correlation of incidence in veterans exposed to herbicide agents from “limited or suggestive” to “sufficient,” as well as the application of such findings to the Veteran’s service and medical history as it pertains to the disorder of hypertension and/or its symptoms. (c.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension was caused by or aggravated by any of the Veteran’s service-connected disabilities, to include treatment for such disabilities? In responding to this question, the clinician is asked to consider, and address as necessary, whether any of the Veteran’s service-connected disabilities or treatment the Veteran has received for those disabilities may have resulted in obesity; and if so, the clinician is asked to discuss the extent to which obesity can cause or aggravate hypertension. The clinician should note that the phrase “as least as likely as not” does not mean “within the realm of medical possibility,” but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it. The clinician is advised that a finding that the Veteran’s hypertension was aggravated beyond its natural progression by a service-connected disability (or its treatment) does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A clear rationale for all opinions expressed would be helpful; and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Tolbert, 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.