Citation Nr: 22012292 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 16-62 949 DATE: March 3, 2022 ORDER Entitlement to service connection for hypertension is granted. REMANDED Entitlement to service connection for a pulmonary disorder is remanded. Entitlement to service connection for a neurological disorder, to include restless leg syndrome (RLS) is denied. FINDING OF FACT The Veteran's hypertension is etiologically linked to his active-duty service. CONCLUSION OF LAW The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1969 to October 1971, and from June 1975 to August 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In August 2019, the Veteran testified at a Board hearing. Unfortunately, due to a malfunctioning recording device, the Board was unable to transcribe this hearing and associate the Veteran's testimony with the record. Accordingly, in October 2019, the Board contacted the Veteran to advise him of the unavailability of his hearing transcript and offered an opportunity to participate in a new, transcribed, Board hearing. As the Veteran did not request a new hearing, the Board will proceed to adjudicate his case. The matter was previously before the Board in January 2021. The matter was remanded for additional development to include obtaining an adequate VA examination and opinions as to the nature and etiology of the claimed disabilities. The Veteran was afforded VA examinations for respiratory conditions, peripheral nerve conditions, and hypertension in January 2021. Nexus opinions were associated with the file in January 2021. The Board finds there has been substantial compliance with the January 2021 remand directives as to the claim for service connection for hypertension, and further remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that remand not required where there was substantial compliance with remand directives). To the extent that the requested development was not substantially complied with regarding the claims for service connection for COPD and a neurological condition, these claims are not ready for appellate review and are addressed in the Remand portion of this decision. Id. 1. Entitlement to service connection for hypertension Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may also be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 48 (1995) (en banc). Regarding service connection due to herbicide agent exposure, VA laws and regulations provide that if a veteran was exposed to certain herbicide agents during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.309(e). A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation. The Secretary of VA has determined that there is no positive association between exposure to herbicide agents and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the evidence is persuasively for or against the claim, in which case the claim is either denied or granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he has hypertension due to his exposure to certain herbicide agents during service. In the alternative, the Veteran asserts that his hypertension is caused or aggravated by his service-connected diabetes. The Board finds that service connection is warranted on a direct basis. The Veteran is diagnosed with hypertension, thus meeting the first element of service connection. In-service herbicide agent exposure is presumed where a veteran has qualifying service in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. The Board notes that the Veteran has documented service in the Republic of Vietnam as evidenced by his receipt of awards such as the Vietnam Campaign Medal and Vietnam Service Medal. The Veteran's military personnel records confirm "boots on the ground" service in the Republic of Vietnam. As discussed above, 38 C.F.R. § 3.309(e) specifically lists those diseases covered by the provision regarding herbicide agent exposure, and the list does not include hypertension. Thus, a connection between the Veteran's hypertension and herbicide agent exposure cannot be presumed, and service connection on a presumptive basis cannot be awarded. However, service connection for hypertension can still be established on a direct basis. As mentioned, a current diagnosis for hypertension is documented and the Veteran has presumed exposure to Agent Orange as an in-service incurrence for his hypertension. This leaves the issue of nexus. In September 2019, the Veteran's long time treating physician provided a positive nexus opinion indicating a connection between the Veteran's active-duty service. However, the opinion is of limited probative value as the physician provided no rational to support the opinion. The Board acknowledges that the January 2021 VA examiner provided a negative opinion as to direct service connection. The examiner noted the Veteran's service treatment records (STRs) did not support a diagnosis of hypertension during service. Additionally, the examiner found the Veteran's hypertension was essential in nature and thus was likely caused by several risk factors other than Agent Orange exposure. The examiner conceded the association between exposure to Agent Orange and the development of hypertension. Nevertheless, the examiner noted the National Academies of Sciences, Engineering and Medicine (NAS) authors concluded that no cause and effect of herbicide spraying and hypertension could be made. The Board finds the opinion is of diminished probative value as the examiner did not address the October 2019 positive nexus opinion. The NAS recently opined that there is sufficient evidence of an association between exposure to herbicide agents used during the Vietnam War and hypertension. See The National Academies of Sciences, Engineering, and Medicine, Committee Review the Health Effects in Vietnam Veterans Exposure to Herbicides (Eleventh Biennial Update) (2018), available at https://www.nap.edu/catalog/25137/veterans-and-agent-orange-update-11-2018. Hypertension was moved to the category of "sufficient" evidence of an association from its previous classification in the "limited or suggestive" category. The research showed that there is enough epidemiologic evidence to conclude that there is a positive association between herbicide agent exposure and hypertension in Vietnam Veterans. Id. This new research demonstrates a causal relationship between the Veteran's hypertension and exposure to an herbicide agent during service. Given the evidence of record as to a nexus for the Veteran's hypertension and his exposure to herbicides, the Board finds that there is relative equipoise as to this question. Thus, resolving all reasonable doubt in favor of the Veteran, a nexus has been established. As all three elements of service connection are established, service connection for hypertension is granted. REASONS FOR REMAND A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand orders. Where the remand orders of the Board were not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). This obligation is mandatory, not discretionary. 1. Entitlement to service connection for a pulmonary disorder is remanded. Pursuant to the January 2021 remand directives, the Veteran was afforded a VA examination for respiratory conditions. The Board finds the VA opinion associated with the January 2021 VA examination is inadequate. The examiner opined the Veteran's chronic obstructive pulmonary disorder (COPD) was less likely than not incurred in or aggravated by service. The examiner found that the Veteran's in service respiratory events were self-limiting. However, the examiner provided no explanation for this determination. The Board notes the Veteran was diagnosed with bronchial asthma in service and he was placed on a profile for asthma in January 1980. Importantly, the record does not include a separation examination for his final period of service. Therefore, there it is unclear whether the Veteran's asthma resolved during service. Without a thorough rationale, the Board cannot make a fully-informed decision on the issue of direct service connection for a pulmonary disorder. 2. Entitlement to service connection for a neurological disorder, to include RLS The Veteran was afforded a VA examination for peripheral nerve conditions in January 2021. The Board finds that the VA opinion associated with the January 2021 examination is inadequate. The examiner diagnosed the Veteran with periodic limb movement syndrome. However, the examiner failed to address whether the Veteran's diabetes, to include diabetic peripheral neuropathy of the bilateral lower extremities, aggravated this condition. The Board notes that secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2016). Therefore, the question of "aggravation" is pertinent in order for the Board to properly adjudicate the Veteran's claim. Therefore, an addendum medical opinion is required. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any medical providers who treated him for a pulmonary disorder or neurological disorder of the lower extremities. Then take all appropriate action to obtain any identified records. 2. After completion of the above, forward the entire claims file, including this remand to the January 2021 VA examiner, or another qualified examiner if the January 2021 examiner is unavailable, for addendum opinions regarding the Veteran's pulmonary and neurological disorders. New examinations are not required unless the examiner determines it to be necessary. The examiner should respond to the following: a) Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran has a pulmonary disability to include COPD and/or asthma that was incurred in or aggravated by service, to include being seen for respiratory symptoms in May 1969, July 1979, October 1979, and January 1980. Explain why or why not. If the examiner determines the Veteran's in service respiratory symptoms resolved during service, the examiner must provide a thorough explanation taking into consideration the absence a separation examination for the Veteran's final period of service. b) Whether it is at least as likely as not that the Veteran's periodic limb movement disorder (PLMD) is aggravated by his service-connected diabetes mellitus and/or diabetic peripheral neuropathy of the lower extremities. Explain why or why not. If the examiner finds that the PLMD is aggravated by the service-connected diabetes mellitus, then he/she should quantify the degree of aggravation, if possible. 2. Review the claims file to ensure that all requested development is completed. Then readjudicate the claims on appeal. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Sherman 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.