Citation Nr: 21030112 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-12 170 DATE: May 17, 2021 REMANDED Entitlement to service connection for hypertension, to include as due to herbicide exposure or secondary to service-connected diabetes mellitus, type two (DM-II), is remanded. Entitlement to service connection for an artery or vein disorder, to include varicose veins, is remanded. Entitlement to service connection for a gastrointestinal disorder, to include gastroesophageal reflux disease (GERD) and gastritis, is remanded. Entitlement to service connection for an eye disorder, to include as secondary to service-connected DM-II, is remanded. Introduction The Veteran served honorably in the United States Air Force during the Peacetime and Vietnam Era, from June 1963 to June 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2015 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. When these matters came before the Board most recently in July 2020, they were remanded for additional development. The Board observes the additional development has been completed, and the matters return to the Board for further appellate review. While further delay is regrettable, for the reasons set forth below, the Board finds remand is again required regarding the issues involved herein. Finally, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). REASONS FOR REMAND Entitlement to service connection for hypertension, to include as due to herbicide exposure or secondary to service-connected DM-II, is remanded. In a March 2017 Brief, the Veteran's former representative contended that hypertension was caused by the Veteran's in-service exposure to herbicide agents or, alternatively, as a result of his service-connected DM-II. As such, the Board has recharacterized the issue accordingly. Pursuant to the Board's March 2019 decision, the Veteran's presumed exposure to herbicide agents has been established and entitlement to service-connected DM-II granted as a result. Based upon the Board's July 2020 remand directives, an addendum VA medical opinion was obtained in October 2020. For the following reasons, the Board finds the VA examiner's opinion inadequate for purposes of determining service connection and does not substantially comply with the prior remand directives. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998). First, according to the VA examiner, it is less likely than not that the Veteran's hypertension is related to an in-service injury, disease, or event, including exposure to an herbicide agent. By way of rationale, the VA examiner noted that, "63% of the general population over 60 years old has hypertension" and that, "[m]athematically, it is impossible for the increased risk of specific events to result in an increase greater than the baseline prevalence (maximum possible if 100% of Vietnam Veterans had [hypertension] is 37%)." The Board notes the Veteran was diagnosed with hypertension in approximately August 2002, at which time he had not reached age 60. Moreover, the Board finds the VA examiner failed to offer a fully-articulated opinion based upon sound reasoning and the evidence of record regarding whether the Veteran's hypertension is due to, related to, or etiologically associated with his active duty service, to include herbicide exposure. Next, the VA examiner opined that it is less likely than not "that [V]eteran's [hypertension] was noted in service or within 1 year after discharge." However, the Board observes the VA examiner's report is silent as to when the Veteran was initially diagnosed with hypertension. In light of the foregoing, the Board finds remand is again required to obtain an addendum VA medical opinion adequate for determining entitlement to service connection for hypertension as due to herbicide exposure or secondary to service-connected DM-II, and that substantially complies with the Board's prior remand directives. Entitlement to service connection for an artery or vein disorder, to include varicose veins, is remanded. As the Board held in its July 2020 decision, "[t]o the extent that varicose veins might be caused or aggravated by the Veteran's hypertension, the claim is also inextricably intertwined with the remanded claim relating to possible service-connection for hypertension." See Harris, 1 Vet. App. 180. Therefore, a final decision on the issue of entitlement to service connection for an artery or vein disorder, to include varicose veins, cannot be rendered until a decision on the remanded issue of entitlement to service connection for hypertension is adjudicated. Id. Entitlement to service connection for a gastrointestinal disorder, to include GERD and gastritis, is remanded. Pursuant to the Board's July 2020 remand directives, an addendum VA medical opinion as to whether the Veteran's gastrointestinal disorder(s) is at least as likely as not proximately due to, or aggravated beyond its natural progression by, inter alia, hypertension or service-connected DM-II was to be obtained. An addendum VA medical opinion dated October 2020 is now of record. For the following reasons, the Board finds the VA examiner's opinion is inadequate for determining service connection and does not substantially comply with the prior remand directives. See Barr, 21 Vet. App. 303; Stegall, 11 Vet. App. 268. First, the VA examiner failed to offer a fully-articulated opinion based upon sound reasoning and the evidence of record when he summarily opined that, "[t]he most likely cause [sic] of GERD is tobacco abuse and heavy alcohol consumption as described in 8 May 2019 exam." The Board is not persuaded by the VA examiner's conclusory opinion regarding etiology, as the opinion lacks sufficient analysis and medical reasoning to sufficiently weigh the opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). Finally, the issue of entitlement to service connection for a gastrointestinal disorder(s) is also inextricably intertwined with the issue of entitlement to service connection for hypertension being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, a final decision on the issue of entitlement to service connection for a gastrointestinal disorder(s) cannot be rendered until a decision on the remanded issue of entitlement to service connection for hypertension is adjudicated. Id. Entitlement to service connection for an eye disorder, to include as secondary to service-connected DM-II, is remanded. Pursuant to the Board's July 2020 remand directives, the Veteran underwent a VA examination in November 2020 (added to the claims file January 2021) regarding his claim for entitlement to service connection for an eye disorder. For the following reasons, the Board finds the VA examination reports are inadequate for purposes of determining service connection and do not substantially comply with the prior remand directives. See Barr, 21 Vet. App. 303; Stegall, 11 Vet. App. 268. First, regarding possible direct service connection, the VA examiner did not check either of the boxes provided in the Medical Opinion Disability Benefits Questionnaire (DBQ). Likewise, the VA examiner did not check any of the boxes regarding possible secondary service connection or aggravation of a condition that existed prior to service. Moreover, regarding possible direct causation due to conceded herbicide exposure, the VA examiner reported that, "[e]ach of the [Veteran's] eye diseases ... can occur spontaneously or may be due to age and are not related to the Veteran's [DM-II]." As such, the VA examiner did not actually offer an opinion regarding a possible etiological relationship between the Veteran's herbicide exposure and his eye condition(s). Next, the VA examiner failed to offer a fully-articulated opinion based upon sound reasoning and the evidence of record as to whether the Veteran's defective vision noted on his separation examination clearly and unmistakably (i.e., obvious, manifest, and undebatable) pre-existed his active duty service and, if so, whether it also was clearly and unmistakably not aggravated by such service. Instead, the VA examiner summarily noted, "N/A [n]one of the conditions are aggravated beyond natural progression." Further, the VA examiner failed to offer a fully-articulated opinion based upon sound reasoning and the evidence of record regarding whether it is at least as likely as not that a superimposed injury or disease during active duty resulted in additional eye disability. Instead, the VA examiner again summarily reported "[n]o aggravation beyond natural progression." Finally, the VA examiner failed to offer a fully-articulated opinion based upon sound reasoning and the evidence of record regarding whether it is at least as likely as not that a non-service-connected eye condition(s) has been aggravated beyond its natural progression by a service-connected condition. Instead, the VA examiner summarily noted, "[n]o aggrivation [sic] is found." The VA examiner's opinions lack sufficient analysis and medical reasoning to sufficiently weigh the opinions. See Stefl, 21 Vet. App. at 124-25. In light of the foregoing, the Board finds remand is again required to obtain an addendum VA medical opinion adequate for determining entitlement to service connection for an eye disorder(s), and that substantially complies with the Board's prior remand directives. Accordingly, this matter is REMANDED for the following actions: 1. Schedule the Veteran for a VA cardiovascular examination with a physician who has not previously offered an opinion in this matter and possessing the necessary expertise to fully assess and provide an opinion regarding the nature, severity, and likely etiology of the Veteran's hypertension and artery or vein disorder(s). **If an in-person examination is not feasible, alternative methods such as a VA telehealth interview and records review should be utilized. The examiner must obtain a full history from the Veteran. It should be noted the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomology. All pertinent symptomology, including any manifestations to a compensable degree within one year from the date of separation from service, must be reported in detail. Based upon a review of all pertinent documents in the Veteran's claims file, including medical treatment and examination records, lay statements, and the examination results, the examiner must offer an opinion based upon an accurate medical history, with clear conclusions and supporting data, as to: (a.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's hypertension is due to, related to, or otherwise etiologically associated with his military service, to include conceded herbicide exposure. (b.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's hypertension is proximately due to, related to, or otherwise etiologically associated with or aggravated by a service-connected condition, to include DM-II and/or medications. (c.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's artery or vein disorder(s) is due to, related to, or otherwise etiologically associated with his military service, to include conceded herbicide exposure. (d.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's artery or vein disorder(s) is proximately due to, related to, or otherwise etiologically associated with or aggravated by hypertension or a service-connected condition, to include DM-II and/or medications. In offering the above opinion, the examiner must consider and discuss as necessary all pertinent lay and medical evidence of record including, but not limited to, the following: (a.) June 2014 private medical opinion by Dr. M.M.; (b.) The National Academy of Sciences (NAS) Institute of Medicine finding in Veterans and Agent Orange: Update 11 (2018) of sufficient epidemiologic evidence to identify a positive association between hypertension and herbicide exposure; and (c.) The 2016 study of the American College of Occupational Environmental Medicine on herbicide exposure submitted by the Veteran in December 2016. The examiner should note that, while the lack of evidence in the STRs and immediately after military discharge are relevant factors, the mere absence of evidence does not equate to unfavorable evidence. The Veteran's lay statements and reports of onset and symptomology must be considered and discussed. A complete and thorough rationale for all opinions expressed, with references to pertinent evidence of record, must be provided. 2. Schedule the Veteran for a VA medical examination with a physician who has not previously offered an opinion in this matter and possessing the necessary expertise to fully assess and provide an opinion regarding the nature, severity, and likely etiology of the Veteran's gastrointestinal disorder(s), even if . **If an in-person examination is not feasible, alternative methods such as a VA telehealth interview and records review should be utilized. The examiner must obtain a full history from the Veteran. It should be noted the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomology. All pertinent symptomology, including any manifestations to a compensable degree within one year from the date of separation from service, must be reported in detail. Based upon a review of all pertinent documents in the Veteran's claims file, including medical treatment and examination records, lay statements, and the examination results, the examiner must offer an opinion based upon an accurate medical history, with clear conclusions and supporting data, as to: (a.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's gastrointestinal disorder(s) is due to, related to, or otherwise etiologically associated with his military service, to include conceded herbicide exposure. (b.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's gastrointestinal disorder(s) is proximately due to, related to, or otherwise etiologically associated with or aggravated by hypertension or a service-connected condition, to include DM-II and/or medications. In offering the above opinion, the examiner must consider and discuss as necessary all pertinent lay and medical evidence of record including the June 2014 private medical opinion by Dr. M.M. The examiner should note that, while the lack of evidence in the STRs is a relevant factor, the mere absence of evidence does not equate to unfavorable evidence. The Veteran's lay statements and reports of onset and symptomology must be considered and discussed. A complete and thorough rationale for any opinion(s) expressed, with references to pertinent evidence of record, must be provided. 3. Schedule the Veteran for a VA medical examination with a physician who has not previously offered an opinion in this matter and possessing the necessary expertise to fully assess and provide an opinion regarding the nature, severity, and likely etiology of the Veteran's eye disorder(s). **If an in-person examination is not feasible, alternative methods such as a VA telehealth interview and records review should be utilized. The examiner must obtain a full history from the Veteran. It should be noted the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomology. All pertinent symptomology, including any manifestations to a compensable degree within one year from the date of separation from service, must be reported in detail. Based upon a review of all pertinent documents in the Veteran's claims file, including medical treatment and examination records, lay statements, and the examination results, the examiner must offer an opinion based upon an accurate medical history, with clear conclusions and supporting data, as to: (a.) Whether it is clear and unmistakable (i.e., obvious, manifest, undebatable) that the defective vision noted on the Veteran's separation examination report pre-existed active duty service. (b.) If the answer to (a.) above is in the affirmative, whether it is clear and unmistakable (i.e., obvious, manifest, undebatable) that the pre-existing defective vision was not aggravated by active duty service. (c.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's eye disorder(s) is due to, related to, or otherwise etiologically associated with his military service, to include conceded herbicide exposure. (d.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's eye disorder(s) is proximately due to, related to, or otherwise etiologically associated with or aggravated by hypertension or a service-connected condition, to include DM-II and/or medications. In offering the above opinion, the examiner must consider and discuss as necessary all pertinent lay and medical evidence of record including, but not limited to: (a.) the STR dated February 1966 noting brake fluid in the Veteran's left eye; (b.) Report of Medical Examination dated January 1967 noting defective distant and near vision; and (c.) June 2014 private medical opinion by Dr. M.M. The examiner should note that, while the lack of evidence in the STRs is a relevant factor, the mere absence of evidence does not equate to unfavorable evidence. The Veteran's lay statements and reports of onset and symptomology must be considered and discussed. A complete and thorough rationale for any opinion(s) expressed, with references to pertinent evidence of record, must be provided. (Continued on next page) T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.