Citation Nr: 21041479 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 14-36 412 DATE: July 9, 2021 REMANDED Entitlement to service connection for hypertension, to include as secondary to herbicide agent exposure or service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1968 to March 1970. This matter comes before the Board of Veteran's Appeal (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded in May 2018, January 2020, August 2020, and March 2021 for further development. The case has now returned to the Board for appellate review and, although it again regrets further delay, the Board finds that additional remand is required. 1. Entitlement to service connection for hypertension, to include as secondary to herbicide agent exposure or service-connected disability, is remanded. The Board sincerely regrets the additional delay in adjudication that will undoubtedly result due to another remand. However, for the reasons noted below, a medical addendum opinion is warranted as the examinations of record do not provide sufficient information to allow the Board to provide an informed decision. In the May 2021 VA examination report, the VA examiner opined that the Veteran's hypertension was less likely than not proximately due to or the result of the Veteran's service-connected diabetes mellitus type II. See May 2021 VA Examination. The rationale was that the Veteran's hypertension predated his diagnosis of diabetes. However, in Frost v. Shulkin, the Court held that there was no temporal requirement inherent in 38 C.F.R. § 3.310 (a) for claims for service connection on a secondary basis. 29 Vet. App. 131, at 1-2 (2017). The Court explained that "for a veteran to be service connected on a secondary basis under a causation theory, the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred." Id. at 2. The Court's holding in Frost renders the May 2021 VA examiner's opinion regarding a possible relationship between hypertension and diabetes inadequate for adjudicative purposes. Additionally, the Board is required to consider all theories of entitlement to VA benefits that are either raised by the claimant or reasonably raised by the record. See Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008), aff'd sub nom; Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Here, the May 2021 VA examination reasonably raises the issue of entitlement to service connection for disability, for a hypertension condition as secondary via aggravation per the Veteran's service-connected disabilities (specifically, coronary artery disease (CAD) with unstable angina and coronary artery bypass graft (CABG)). See May 2021 VA Examination. No opinion of record addresses this theory. As such, an opinion as to whether the Veteran's hypertension condition is at least as likely as not caused by or aggravated by his service-connected disabilities is warranted. See 38 C.F.R. § 3.159(c)(4). On remand, while addressing aggravation of the Veteran's respiratory condition, the examiner should also provide an opinion that complies with the precedential case Ward v. Wilkie, (holding that aggravation under 38 C.F.R. § 3.310(b) does not require that there be "permanent" worsening of the nonservice connected disability. 31 Vet. App. 233 (2019). The Court found that service connection is warranted for any incremental increase in disability any additional impairment of earning capacity in a non-service-connected disability resulting from service-connected conditions regardless of its permanence. The matter is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) must obtain an addendum opinion from the May 2021 VA examiner, or other similarly situated medical professional, regarding the Veteran's service connection claim for hypertension. An in-person examination is not necessary unless the examiner determines that one must be conducted to address the questions below. The examiner is asked to specifically address the following: a.) whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is: i. related to an in-service injury, event, or disease. ii. herbicide exposure, direct and presumptively. b.) whether it is at least as likely as not (i.e. a 50 percent of greater probability) that such hypertension is: i. caused by a service-connected disability (specifically, CAD with unstable angina and CABG). ii. caused by a service-connected disability (specifically, diabetes). iii. underwent an incremental increase (aggravated), regardless of permanence, by a service-connected disability. If the examiner finds that the Veteran's hypertension predated the Veteran's diabetes, the VA examiner must provide a medical explanation as to why a predated hypertension disability cannot be caused by his service-connected diabetes. Simply stating that hypertension predated diabetes, whether a medical explanation, is insufficient. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. A complete rationale for all opinions offered must be provided. THE EXAMINER SHOULD ADDRESS ANY AND ALL TREATISES OF RECORD. 2. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE, CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. K. Anderson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David B. Scheirich, 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.