Citation Nr: 21029056 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 20-00 305 DATE: May 12, 2021 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for hypertension is reopened. REMANDED Entitlement to service connection for hypertension, to include as due to herbicide agent exposure, and to include as secondary to a service-connected disability, is remanded. Entitlement to an initial rating in excess of 10 percent for right intercostal neuralgia of the musculocutaneous nerve is remanded. FINDINGS OF FACT 1. In a September 2010 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for hypertension. The Veteran did not appeal or submit new and material evidence within a year of the decision. Therefore, the September 2010 rating decision became final. 2. At the time of the September 2010 rating decision, the record did not contain a diagnosis of hypertension, which is reflected in an October 2018 private disability benefits questionnaire and a January 2019 VA examination report. This evidence is new and material and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of entitlement to service connection for hypertension. 38 U.S.C. § 7105 (2018); 38 C.F.R. §§ 3.104, 3.156, 20.202 (2020). REASONS FOR REMAND The Veteran served on active duty from February 1966 to January 1968. He appeals February 2018 and February 2019 rating decisions by the AOJ. 1. Hypertension The Veteran contends his hypertension is due to herbicide agent exposure, and in the alternative, secondary to his service-connected adenocarcinoma of the right lower lobe. See October 2018 VA Form 21-526. January 2019 and September 2019 VA opinions reflect that there is no causal link between the Veteran's hypertension and lung cancer. However, neither opinion reflects consideration of whether the Veteran's service-connected lung cancer has aggravated his hypertension. Therefore, remand is required for another VA opinion that appropriately addresses possible aggravation of the Veteran's hypertension by his service-connected lung cancer. In addition, no VA reviewing clinician has provided an opinion as to whether the Veteran's hypertension is directly related to herbicide agent exposure during his service in Vietnam. Thus, an opinion regarding herbicide agent exposure is needed upon remand 2. Right Intercostal Neuralgia of the Musculocutaneous Nerve The Veteran most recently underwent a VA examination to assess his service-connected right intercostal neuralgia of the musculocutaneous nerve in January 2020. A review of the record illustrates that the Veteran was scheduled to undergo a spinal cord stimulator implant on May 22, 2020. The Veteran reported in a May 28, 2020 written statement that the May 22, 2020 spinal cord stimulator implant did not happen due to scarring at the site, but they are going to try again in six to eight weeks. See May 2020 VA Form 9. The evidence of the Veteran potentially undergoing the spinal cord stimulator implant is evidence of worsening of the Veteran's disability since the January 2020 VA examination. Therefore, given the evidence of worsening and the need for more current findings necessary to rate his right intercostal neuralgia disability, a new examination is needed. 38 C.F.R. § 3.327(a) (2020); Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). In addition, there is no evidence in the file regarding the spinal cord stimulator implant since the May 7, 2020 private treatment record from Tallahassee Orthopedic Clinic indicating that a spinal cord stimulator was scheduled to be implanted on May 22, 2020. Thus upon remand, VA should obtain authorization and request any records since May 7, 2020 from Tallahassee Orthopedic Clinic regarding his right intercostal neuralgia disability. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his hypertension and service-connected right intercostal neuralgia of the musculocutaneous nerve, including from Tallahassee Orthopedic Clinic, that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After completing the development above, obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran's hypertension. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary, the reviewing clinician is asked to respond to the following inquiries: Is it at least as likely as not that the Veteran's hypertension had its onset during, or is otherwise related to, his active duty service, to include his confirmed herbicide agent exposure while in Vietnam? Is it at least as likely as not that the Veteran's hypertension was caused or aggravated by his service-connected adenocarcinoma of the right lower lobe? In rendering this opinion, the reviewing clinician is requested to consider the medical literature submitted by the Veteran and his representative in November 2018 and February 2021 regarding hypertension and herbicide agent exposure. In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing the development in item (1), schedule the Veteran for an examination to determine the current severity of his service-connected right intercostal neuralgia of the musculocutaneous nerve. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. (Continued on the next page) 4. After the above development has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.