Citation Nr: 22015674 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 17-28 154 DATE: March 18, 2022 REMANDED Entitlement to service connection for hypertension to include as secondary to his service-connected ischemic heart disease (IHD) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1967 to August 1970. This claim is on appeal from a November 2014 rating decision. The Veteran's claim was previously remanded by the Board in June 2020 and for the reasons described below another remand is required. For the sake of clarity the Board will recite the pertinent evidence of record. The Veteran contends that service connection for hypertension is warranted as it is the result of his service connected IHD. Further, as the Veteran served in the Republic of Vietnam, he is presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307(a)(6). The Veteran was first afforded a VA examination of his hypertension in November 2014. At that time, the examiner stated that the Veteran's hypertension is not one of the complications of IHD. No rationale was provided. In February 2017, the Veteran was afforded a VA examination and the report contained a current diagnosis of hypertension which the examiner dated back to the 1990's. The VA examiner then opined it is more likely his "uncontrolled hypertension [caused his] ischemic heart disease." In sum, the examiner concluded that the Veteran's hypertension is less likely than not proximately due to or the result of the Veteran's service connected IHD. The report did not contain an opinion regarding the theory of direct service connection. In June 2020, the Board remanded the Veteran's claim to acquire a VA medical opinion as to the nature and etiology of the Veteran's hypertension on a direct basis that took into account the 2018 findings by the National Academy of Sciences (NAS) Institute of Medicine. For reference, the NAS upgraded hypertension from its previous classification in the category of "limited or suggestive" evidence of an association with exposure to Agent Orange to the category of "sufficient" evidence of an association in Update 11 (2018). According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. Subsequently, in July 2020, the Veteran underwent a VA hypertension examination report, and the examiner ultimately determined his hypertension was less likely than not the result of in-service herbicide agent exposure. Specifically, the examiner determined "The prospect of exposure to TCDD from Agent Orange in ground troops in Vietnam seems unlikely in light of the environmental dissipation of TCDD, little bioavailability, and the properties of the herbicides and circumstances of application that occurred." Furthermore, the examiner opined, "This evidence of the environmental fate and poor bioavailability of TCDD from Agent Orange is consistent with the observation of little or no exposure in the veterans who served in Vietnam." While the Board regrets further delay, the Board finds the most recent VA medical opinion to be inadequate and a remand for another medical opinion is required prior to adjudication of the Veteran's claim. In this case, whether confusion on the examiners part or inadequate remand orders, the July 2020 VA examination is inadequate. The VA examiner was to presume the Veteran was exposed to herbicide agent's in-service; instead, the examiner appears to "fight the question" and ultimately determined the Veteran likely suffered "little or no exposure." The question of whether he was exposed and how much the Veteran was exposed in-service is not the thrust of the Board's inquiry. The Board was and is seeking a medical opinion as to the nature and etiology of the Veteran's hypertension presuming he was exposed to herbicide agents and in light of the 2018 NAS study. As such, considering a prior Board remand confers on the claimant a legal right to substantial compliance with the remand order, the Board errs as a matter of law if it fails to ensure substantial compliance with prior directives. See Dyment v. West, 13 Vet. App. 141, 147 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, a remand is required to acquire a new VA medical opinion as to the nature and etiology of the Veteran's hypertension. The matter is remanded for the following actions: 1. Acquire an addendum opinion regarding whether it is at least as likely as not (roughly a 50 percent or greater probability) that the Veteran's hypertension was incurred in or as a result of his active service or any incident therein? Note 1: In answering this question, the examiner must consider the following evidence: (a.) The Veteran is presumed to have been exposed to herbicide agents, to include Agent Orange due to service in the Republic of Vietnam. (b.) The NAS study indicating there is "sufficient evidence of an association" between hypertension and exposure to Agent Orange and other herbicide agents used during the Vietnam War. (c.) Any other evidence the examiner deems relevant to answering the above question. Note 2: All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. Jason George Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.