Citation Nr: 21041779 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 18-30 103 DATE: July 10, 2021 REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II, is remanded. Entitlement to service connection for lung disease, to include as a result of exposure to herbicide agents, is remanded. REASONS FOR REMAND The Veteran served honorably on active duty from June 1967 to February 1970, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2016 and January 2017 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing in March 2021. A transcript of this hearing has been associated with the record. 1. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II, is remanded. The Veteran contends that his current hypertension is related to his service-connected diabetes mellitus, type II. Alternatively, the Veteran contends that his hypertension is related to his duties on active duty service as an ammunition technician, during which he was hazardously exposed to lead. See e.g., March 2021 Board hearing transcript. In January 2017, the Veteran underwent a VA examination for his claimed hypertension. The January 2017 VA examiner subsequently opined that the Veteran's claimed hypertension is not caused by or a result of his service-connected diabetes mellitus, type II. The Board finds that the January 2017 VA examiner's opinion is inadequate for adjudication purposes. In this regard, the January 2017 VA examiner's opinion is non-responsive to entitlement to secondary service connection on the basis of aggravation. Further, the VA examiner did not provide an adequate rationale for the opinion addressing the causation prong of the secondary service connection theory of entitlement. The January 2017 VA examiner's rationale was conclusory and did not provide an explanation for the conclusions reached, and it did not address the aggravation prong of secondary service connection. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Additionally, no opinion has been provided that addresses the Veteran's contentions regarding his exposure to lead during service and the exposure's impact or relation, if any, to his current hypertension. Based on the above and considering there is no other opinion of record that is adequate to adjudicate this claim, this claim should be remanded to obtain an additional VA medical opinion and examination, if necessary. 2. Entitlement to service connection for lung disease, to include as a result of exposure to herbicide agents, is remanded. The Veteran contends that his current lung disease, to include chronic obstructive pulmonary disease (COPD) and asthma, are related to his active duty service, to include his service in the Republic of Vietnam and his exposure to herbicide agents therein. Alternatively, the Veteran asserts that his lung disease may also be related to his duties on active duty service as an ammunition technician, during which he was hazardously exposed to lead. Service personnel records show the Veteran served on the ground in the Republic of Vietnam. Under applicable legal criteria, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases which are deemed to be associated with herbicide exposure, however, do not include lung disease, rather only cancers of the lung and respiratory system. See 38 C.F.R. § 3.309(e). However, although a disability may not be among the list of presumptive diseases associated with exposure to herbicidal agents listed in 38 C.F.R. § 3.309(e), service connection for such a disability may nevertheless be established by showing that a disability is, in fact, causally linked to such exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The evidence of record reflects that there may be a link between the Veteran's current lung disease and his exposure to herbicide agents in service, and as such, an adequate medical opinion must be obtained. See 38 C.F.R. § 3.159. Additionally, no opinion has been provided that addresses the Veteran's contentions regarding his exposure to lead during service and the exposure's impact or relation, if any, to his current lung disease. As such, an addendum medical opinion is necessary for adjudication of the Veteran's claim. The matters are REMANDED for the following action: Obtain an addendum opinion addressing the questions below. Only if deemed necessary by the VA examiner should the Veteran be scheduled for examinations. The Veteran's claims file must be made accessible to the designated professional for review. Following said review, the examiner is then requested to respond to the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's hypertension is etiologically related to his period of service, to include as due to the conceded herbicide agent exposure in the Republic of Vietnam? Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the current disorder and service, including exposure to herbicides. Likewise, the mere fact that a presumption has not been established for any particular disorder at issue is not dispositive of the issue of nexus. Consideration must still be given to the exposure. (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's hypertension is etiologically related to his period of service, to include as due to the exposure to lead therein? (c.) Is it at least as likely as not (50 percent probability or greater) that his hypertension is proximately due to the Veteran's service-connected diabetes mellitus, type II? (d.) Is it at least as likely as not (50 percent probability or greater) that his hypertension is aggravated by the Veteran's service-connected diabetes mellitus, type II? Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. (e.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's lung disease is etiologically related to his period of service, to include as due to the conceded herbicide agent exposure in the Republic of Vietnam? Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the current disorder and service, including exposure to herbicides. Likewise, the mere fact that a presumption has not been established for any particular disorder at issue is not dispositive of the issue of nexus. Consideration must still be given to the exposure. (f.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's lung disease is etiologically related to his period of service, to include as due to the exposure to lead therein? The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. M. Lowman, 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.