Citation Nr: 21022329 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 13-22 395 DATE: April 15, 2021 REMANDED The issue of entitlement to service connection for hypertension, to include as due to exposure to herbicide agents or secondary to service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1966 to October 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a December 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In January 2020, the Board denied entitlement to service connection for hypertension. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court), and the Court granted a November 2020 Joint Motion for Remand (JMR), vacated the January 2020 Board decision and remanded the issue to the Board for readjudication. The issue of entitlement to service connection for hypertension is remanded. The Veteran contends that he is entitled to service connection for hypertension as directly related to has active service or secondary to a service-connected disability. Specifically, the Veteran testified that his hypertension is due to exposure to herbicide agents or caused by, or aggravated by his service-connected posttraumatic stress disorder (PTSD). The parties to the November 2020 JMR agreed that the Board erred in its January 2020 decision by not ensuring that an adequate medical opinion had been obtained and by not ensuring compliance with the Board’s March 2018 remand directives. In regard to the adequacy of the VA opinion, the parties to the November 2020 JMR agreed that a June 2019 opinion failed to address the Veteran’s October 2017 Board hearing testimony related to whether the Veteran’s hypertension is secondary to his service-connected PTSD. In addition, the June 2019 VA examiner did not apply the correct standard of aggravation. Specifically, the VA examiner stated that the Veteran’s hypertension was less than likely aggravated or permanently worsened by his service-connected PTSD; however, the standard only requires any increase in severity of a nonservice-connected disease, not a permanent worsening. See Ward v. Wilkie, 31 Vet. App. 233 (2019). Additionally, the parties to the November 2020 JMR agreed that the June 2019 VA examiner failed to provide a separate rationale addressing aggravation apart from a rationale addressing causation. The parties further agreed that on remand a VA examiner shall address the fact that VA has conceded the Veteran’s exposure to herbicide agents. Therefore, the parties to the November 2020 JMR agreed that the June 2019 VA opinion is inadequate for decision-making purposes, and that a new VA medical opinion must be obtained to directly address the Veteran’s October 2017 Board hearing testimony, to apply the correct standard of aggravation, to provide a separate rationale addressing aggravation and causation, and to address the Veteran’s conceded exposure to herbicide agents. The matter is REMANDED for the following action: 1. Forward the record and a copy of this remand to the examiner who conducted the June 2019 VA examination, or if the examiner is unavailable, another suitably qualified examiner, for completion of an addendum opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should express an opinion as to: (a.) Is it at least as likely as not (50 percent probability or more) that the Veteran’s hypertension is related to his active service, to include, but not limited to, exposure to herbicides? Rationale must be provided for the opinion proffered. In rendering the requested rationale, the examiner is asked to specifically address the latest findings from the National Academies of the Sciences, Engineering and Medicine (NAS) Veterans and Agent Orange: Update 11 (2018) regarding whether there is a relationship between the Veteran’s hypertensive heart disease and exposure to herbicide agents (i.e. Agent Orange). The examiner must note that applicable VA law establishes that the legal provision for presumptive service connection does not otherwise preclude a veteran from establishing service connection with proof of actual direct causation on a nonpresumptive direct incurrence basis. (b.) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension is proximately due to or the result of his service-connected disabilities, specifically to include his service-connected PTSD. Rationale must be provided for the opinion proffered. In rendering the requested rationale, the examiner must note that it is not required that the hypertension is shown to be “predominantly” due to or result of PTSD, but rather, whether there is any contributing degree of etiological relationship to PTSD. (c.) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension is aggravated beyond natural progression by his service-connected disabilities, specifically to include his service-connected PTSD. Rationale must be provided for the opinion proffered. In rendering the requested rationale, the examiner must note that it is not required that the hypertension is shown to be aggravated beyond natural progression “predominantly” by PTSD, but rather, whether there is any contributing degree of aggravation beyond natural progression by the service-connected PTSD. Pursuant to Atencio v. O’Rourke, 30 Vet. App. 74 (2018), the VA examiner must provide separate findings and rationales as to whether the Veteran’s hypertension is caused by, or aggravated by, his service-connected disability(ies). Additionally, the VA examiner should address the Veteran’s October 2017 lay testimony that PTSD symptoms such as stress, anxiety, nervousness, and chronic sleep impairment aggravated his blood pressure. The VA examiner should address the article submitted by the Veteran in December 2020 reflecting a connection between PTSD and hypertension. 2. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection for hypertension may be granted. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine, 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.