Citation Nr: 21029548 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-35 426 DATE: May 13, 2021 REMANDED Entitlement to service connection for hypertension to include as due to exposure to herbicide agents is remanded. Entitlement to a total disability rating based on individual unemployability for service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1968 to March 1970, from October 1970 to February 1974, and from April 1977 to August 1977. In an October 2012 administrative decision, the Department of Veterans Affairs (VA) determined that his period of service from March 4, 1971, to February 13, 1973, was dishonorable and was a bar to VA benefits under 38C.F.R.§3.12(d). This case comes before the Board on appeal from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board remanded this matter for additional development. 1. Entitlement to service connection for hypertension to include as due to exposure to herbicide agents is remanded. The Veteran seeks service connection for hypertension based on his exposure to herbicide agents while stationed in Vietnam. VA has conceded exposure to herbicide agents. 10/20/2020 VA Memo. In this case, after the Board's remand an etiology opinion was obtained dated in December 2019. However, this opinion is inadequate for rating purposes. Accordingly, a remand is required to obtain an adequate etiology opinion. Regarding the relationship between hypertension and exposure to herbicide agents, the December 2019 examiner provided a negative nexus opinion based solely on the fact that hypertension is not listed as a presumptive condition of herbicide exposure under 38 C.F.R. § 3.309(e). This rationale is inadequate because service connection for a disease can be established on a direct basis as related to Agent Orange and is not precluded solely because the disease is not listed as a presumptive condition associated with herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that the availability of presumptive service connection from some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). While the VA examiner reported a review of the National Academy of Science (NAS) study, Veterans and Agent Orange: Update 11 (2018) the opinion noted that this study showed that there might be some evidence of association tis was still not confirmed and therefore hypertension was not considered Agent Orange presumptive diagnosis at this time. The Board finds that the 2019 VA examiner did not provide a sufficient rationale regarding the NAS study findings and seemed to reject the relationship between hypertension and herbicide exposure based of the VA's non-recognition of hypertension as a presumptive disease associate with Agent Orange exposure. Accordingly, on remand, an opinion must be obtained addressing whether the Veteran's hypertension is related to his exposure to herbicide agents during service. 2. Entitlement to a TDIU is remanded. The Board finds that the claim of entitlement to TDIU is inextricably intertwined with the claim for service connection for hypertension. All issues "inextricably intertwined" with the issue certified for appeal, are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). The issue of entitlement to TDIU is intertwined with the service connection claim because a decision on the latter claim may have an impact on the former claim. Thus, the claim of entitlement to TDIU must be remanded for the appropriate development, as well as contemporaneous adjudication. These matters are REMANDED for the following action: Obtain addendum opinions from the December 2019 examiner, or another qualified clinician, addressing the etiology of the Veteran's hypertension. The examiner must be provided access to the electronic claims file and indicate review of the file in the opinion report. After reviewing the evidence, the examiner must provide the following opinions: Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is related to his exposure to herbicide agents during service? The examiner is requested to consider and discuss as necessary the National Academy of Science's Agent Orange: Update 11 (2018), which upgrades hypertension from the category of "limited or suggestive" evidence of an association with herbicide exposure to the category of "sufficient" evidence. The examiner is advised that service connection for a disease can be established on a direct basis as related to Agent Orange and that service connection is not precluded solely because the disease is not listed as a presumptive condition associated with herbicide exposure. Thus, the opinion and associated rationale must address the likelihood that this Veteran's hypertension is related to herbicide agent. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dworkin, 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.