Citation Nr: 21027323 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 09-29 177 DATE: May 5, 2021 REMANDED Service connection for hypertension based only on herbicide exposure on a direct basis. REASONS FOR REMAND The Veteran served on active duty from September 1966 to September 1968. The case is on appeal from a February 2008 rating decision. By way of background, in December 2012, the Board remanded the Veteran's claim of service connection for hypertension. In December 2015, the Board denied the claim of service connection for hypertension other than as a result of herbicide exposure. The Board also remanded the claim of service connection for hypertension as a result of herbicide exposure. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In January 2017, the Court remanded the claim to the Board for action consistent with a Joint Motion for Partial Remand (JMPR). In May 2017, the Board remanded the claim of service connection for hypertension other than as a result of herbicide exposure. In December 2017, the Board denied the claim of service connection for hypertension other than as a result of herbicide exposure. This denial included the theories of service connection of direct service connection (other than due to herbicide exposure), secondary service connection (to service-connected diabetes) and the chronic disease presumption. In May 2019, the Board denied the claim of service connection for hypertension only as secondary to herbicide exposure. The Veteran appealed the Board's denial to the Court. In an August 2020 Memorandum Decision, the Court affirmed the May 2019 Board denial of service connection for hypertension on a presumptive basis based on herbicide exposure. The Court also set aside and remanded the May 2019 Board denial of service connection for hypertension based on herbicide exposure on a direct basis. In review, the claim that is now before the Board is service connection for hypertension based only on herbicide exposure on a direct basis, as all other potentially applicable theories of service connection for hypertension have previously been denied by the Board. Service connection for hypertension based only on herbicide exposure on a direct basis. As noted, the Board denied this claim in May 2019. In this denial, the Board relied on a negative January 2017 VA direct service connection opinion. In the August 2020 Memorandum Decision, the Court stated that "the Secretary concedes that the Board erred because it relied on a medical opinion that was not adequate for adjudication purposes. The Court agrees." In light of the January 2017 VA opinion being declared inadequate by the Court, remand is warranted to obtain a new VA opinion as to direct service connection and herbicide exposure. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: Obtain an opinion from a physician (in order to substantially comply with the prior December 2015 Board remand) that addresses the Veteran's hypertension claim. If the physician determines that additional examination of the Veteran is necessary to provide an adequate opinion, such examination should be scheduled. The physician must provide an opinion addressing the following: Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's hypertension is related to his presumed in-service herbicide agent exposure. The physician: (a.) should consider and discuss in any opinion rendered the NAS finding that that there is sufficient evidence of an association between exposure to herbicides and hypertension. See Veterans and Agent Orange: Update 11 (2018). In this regard, the physician's attention is also invited to the November 2012 Appellant's Brief, which stated "[t]here is medical literature available that tends to link the development of hypertension with herbicide exposures through the same mechanism which results in the diabetes. Agent Orange (or other herbicide agents) result in diabetes by inducing insulin resistance, and insulin resistance is also linked to the development of hypertension," followed by citation to medical literature. (b.) is instructed that the Veteran is presumed exposed to herbicides, and that there is no additional requirement that he establish that he was exposed or exposed to a certain degree (such as by virtue of a particular MOS) in order to obtain that presumption and establish exposure. (Continued on the next page) (c.) should address whether the Veteran had any risk factors other than herbicide exposure, that would impact his claim. For all opinions provided, the physician must include the underlying reasons for any conclusions reached. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoopengardner, 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.