Citation Nr: 21042418 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 14-17 632 DATE: July 13, 2021 REMANDED Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1965 to October 1967, to include service in the Republic of Vietnam and was awarded the Combat Infantry Badge. In March 2015 the Veteran withdrew his Board of Veterans' Appeal (Board) hearing request. In February 2018, the Board remanded the above issues. In January 2020, a Veterans' Law Judge not the undersigned issued a Board decision that, among other things, denied service connection for a right knee disorder and hypertension. The Veteran appealed the Board's January 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2021 order, which incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the January 2020 Board decision to the extent that it denied service connection for a right knee disorder and hypertension. Entitlement to service connection for a right knee disorder and hypertension are remanded. Initially, the March 2021 JMPR vacated and remanded the January 2020 Board decision because the claims of service connection for a right knee disorder and hypertension were adjudicated without the Department of Veterans' Affairs (VA) first attempting to obtain and associate with the record his treatment records from Dr. Timothy Ashley as well as the employment physical from the 1990's that first diagnosed hypertension. Therefore, the Board finds that a Remand to attempt to obtain and associate with the claims file these records as well as any other outstanding VA and private treatment records is required. See 38 U.S.C. § 5103A(b); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled); Also see Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them). Next, the March 2021 JMPR vacated and remanded the January 2020 Board decision because the etiology opinions provided by the Veteran's VA examiners were not adequate. Specifically, as to the right knee disorder, the March 2021 JMPR found the July 2018 VA examination inadequate because "...the examiner based the opinion partly on the absence of documented treatment or reports of symptoms relating to the right knee in service or at Appellant's separation ... [and the]... examiner's opinion and rationale does not reflect that the examiner took Appellant's lay statements of symptoms since service into consideration; statements that the Board explicitly found credible... [in other words the]... examiner's failure to address Appellant's credible lay statements about continued right knee symptoms since their onset in service." As to the hypertension, the March 2021 JMPR found the July 2018 and April 2019 VA examinations inadequate because, "... as to direct service connection, while the July 2018 and April 2019 VA examiners opined that Appellant's hypertension was not due to his active service, the rationale provided for both opinions was inadequate as it was based solely on the lack of documentation of hypertension in the service treatment records" Similarly, the March 2021 JMPR found the July 2018 and April 2019 VA examinations inadequate "... as to secondary service connection ... [because]... the July 2018 VA examiner opined that Appellant's hypertension was not 'proximately due to or the result of' his diabetes mellitus and explained that 'there are many risk factors associated with hypertension, not diabetes alone' and that it was more likely 'that the sum of the additional risk factors have contributed more to' Appellant's hypertension than his diabetes...However, the examiner failed to identify what these 'other risk factors' were or, more importantly, did not explain what other risk factors Appellant actually had other than diabetes mellitus... As to the April 2019 VA opinion, the examiner stated that Appellant's hypertension was not caused or aggravated by his diabetes and simply noted that both his blood pressure and diabetes had been well controlled, without explaining what significance this had on the relationship between Appellant's hypertension and diabetes." Therefore, the Board finds that a Remand to provide the Veteran with VA examinations to obtain adequate medical opinions is also required. See 38 U.S.C. § 5103A(d); Forcier, supra; Also see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); ElAmin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). As to the right knee disorder, when again adjudicating the claim the RO must be mindful of the fact that the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. See Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012); Also see 38 U.S.C. § 1154(b). As to hypertension, when providing the requested medical opinions and again adjudicating the claim of service connection for hypertension the VA examiner and the RO must apply the Court's new definition of aggravation which now includes a temporary worsening of a disability. See Ward v. Wilkie, 31 Vet. App. 233 (2019). Also as to hypertension, when providing the requested medical opinions and again adjudicating the claim, the VA examiner and the RO must take into account the fact that the National Academy of Sciences 2014 Update concluded that there was limited or suggestive evidence of an association between herbicide exposure and hypertension. See National Academies of Sciences, Engineering, and Medicine, 766-767, 2016, Veterans and Agent Orange: Update 2014. Washington, DC: The National Academies Press (NAS 2014 Update). The appeal is REMANDED for the following actions: 1. In order to comply with the JMPR, after obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records (if any) to include all the Veteran's treatment records from Dr. Timothy Ashley as well as all of his employers medical record to include the employment physical from the 1990's that first diagnosed hypertension. If possible, the Veteran himself or his representative should submit any new pertinent evidence the Board/VA does not have (if any). This would include any recent VA treatment. Any help with the above would be appreciated. If after 3 attempts any of the above records cannot be obtained, the Veteran and his representative should be notified of this fact as well as advised that his appeal will be adjudicated without the records if he does not provide them to the RO. 2. Obtain and associate with the claims file any outstanding VA treatment records (if any). 3. In order to comply with the JMPR, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address his claim of service connection for a right knee disorder. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that a right knee disorder was caused by the Veteran's military service. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any right knee arthritis manifested in the first post-service year. In providing answers to the above question the examiner should consider and discuss the service treatment records. In order to comply with the JMPR, in providing answers to the above question the examiner should consider and discuss the Veteran's competent lay claims regarding observable symptomatology. In other words, to comply with the JMPR, the examiner must "address Appellant's credible lay statements about continued right knee symptoms since their onset in service." In order to comply with the JMPR, in providing answers to the above question the examiner cannot rely solely on negative evidence (i.e., service treatment records and post-service medical records being negative for a right knee disorder until 43 years after service) as the bases for a negative etiology opinion. In providing answers to the above questions, the examiner is also advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In answering the questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to any inquiry without resort to speculation he or she should so state and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. In order to comply with the JMPR, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address his claim of service connection for hypertension. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that hypertension was caused by the Veteran's military service to include his service in the Republic of Vietnam and his presumptive herbicide exposure. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that hypertension manifested in the first post-service year. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was caused by his service-connected diabetes mellitus to include the medication he takes to treat his diabetes mellitus. d. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was aggravated by his service-connected diabetes mellitus to include the medication he takes to treat his diabetes mellitus. In providing answers to the above question the examiner should consider and discuss the service treatment records. In providing answers to the above question the examiner should consider and discuss the Veteran's competent lay claims regarding observable symptomatology. In order to comply with the JMPR, in providing answers to the above question the examiner cannot rely solely on negative evidence. In order to comply with the JMPR, in providing answers to the above question the examiner should address the following: i. "the July 2018 VA examiner opined that Appellant's hypertension was not 'proximately due to or the result of' his diabetes mellitus and explained that 'there are many risk factors associated with hypertension, not diabetes alone' and that it was more likely 'that the sum of the additional risk factors have contributed more to' Appellant's hypertension than his diabetes... However, the examiner failed to identify what these 'other risk factors' were or, more importantly, did not explain what other risk factors Appellant actually had other than diabetes mellitus..." ii. "As to the April 2019 VA opinion, the examiner stated that Appellant's hypertension was not caused or aggravated by his diabetes and simply noted that both his blood pressure and diabetes had been well controlled, without explaining what significance this had on the relationship between Appellant's hypertension and diabetes." In providing answers to the above question the examiner should consider and discuss the NAS's 2018 Update in which it moved hypertension from the "limited or suggestive evidence" category to the "sufficient evidence of an association" category. In providing answers to the above questions, the examiner is also advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing the etiology opinion, the examiner should be aware of the facts that the Court held in Ward, supra, that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). In answering the questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to any inquiry without resort to speculation he or she should so state and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. When again adjudicating the claims, the RO must be mindful of the fact that the Federal Circuit held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury (see Reeves, supra; also see 38 U.S.C. § 1154(b)); NAS's 2018 Update moved hypertension from the "limited or suggestive evidence" category to the "sufficient evidence of an association" category; and the Court in Ward, supra, held that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). April Snoparsky Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.