Citation Nr: 22051169 Decision Date: 09/08/22 Archive Date: 09/08/22 DOCKET NO. 11-03 500 DATE: September 8, 2022 ORDER Entitlement to service connection for hypertension, as due to conceded herbicide exposure, is granted. REMANDED Entitlement to service connection for a right knee condition, to include as secondary to service-connected conditions, is remanded. Entitlement to service connection for a left knee condition, to include as secondary to service-connected conditions, is remanded. Entitlement to service connection for a cervical spine condition, to include as secondary to service-connected conditions, is remanded. Entitlement to service connection for diverticulitis, to include as due to herbicide exposure and as secondary to service-connected conditions, is remanded. Entitlement to service connection for hemorrhoids, to include as secondary to service-connected conditions, is remanded. FINDING OF FACT The Veteran's hypertension is presumed to be etiologically related to his conceded in-service herbicide exposure. CONCLUSION OF LAW The criteria for service connection for hypertension, as due to conceded herbicide exposure, have been met. 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309; Honoring our PACT Act of 2022, Pub. L. 117-168 (2022). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1968 to August 1970, to include service in the Republic of Vietnam (RVN). These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by a Department of Veterans Affairs (VA) regional office. These matters were previously remanded by the Board in May 2019, May 2021, and December 2021. In February 2019, the Veteran testified via video conference before the undersigned Veterans Law Judge (VLJ). A copy of hearing transcript has been associated with the claims file. See February 2019 Board Hearing Transcript, received April 2019. 1. Entitlement to service connection for hypertension, as due to herbicide exposure, is granted. The Veteran seeks service connection for hypertension. Establishing service connection on a "direct" basis generally requires medical, or in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For those who had active service in the RVN between January 1962 and May 1975, service connection may be granted for certain enumerated chronic diseases based upon presumed exposure to an herbicide agent, such as Agent Orange. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). Additionally, Congress recently passed the Honoring our PACT Act of 2022 (PACT Act), which, inter alia, adds hypertension to the list of conditions subject to service connection on a presumptive basis under 38 U.S.C. § 1116. Honoring our PACT Act of 2022, Pub. L. 117-168 (2022). Here, the record reveals a current diagnosis of hypertension. See San Juan VA Medical Center (VAMC) records, received June 2020, August 2021, April 2022, and July 2022 in CAPRI. Additionally, as discussed above, the Veteran served in the RVN and, therefore, herbicide exposure is conceded. The Board acknowledges that, under the PACT Act, the addition of hypertension to the list of conditions for which presumptive service connection is warranted due to herbicide exposure does not become effective until October 1, 2026. However, the presumption is effective as of August 10, 2022, the date the PACT Act was signed into law, for Veterans who are: terminally ill; homeless; under extreme financial hardship; are more than 85 years old; or are capable of demonstrating other sufficient cause. Honoring our PACT Act of 2022, Pub. L. 117-168 (2022). Here, the record reveals that the Veteran is unemployed, indicating that the Veteran is under financial hardship. See San Juan VAMC records. Additionally, the record indicates that the Veteran is in receipt of special monthly compensation (SMC) at the housebound rate as his prostate cancer is rated as totally disabling and his other service-connected conditions are independently ratable at 60 percent or more, indicating other sufficient cause. See January 2022 Rating Decision Codesheet. As such, the Board finds that the criteria to warrant an effective date prior to October 1, 2026, under the PACT Act have been met. As the evidence indicates that the Veteran has a diagnosis of hypertension, and as exposure to herbicides is conceded, entitlement to service connection for hypertension, on a presumptive basis as a result of herbicide exposure, is warranted. See 38 C.F.R. §§ 3.307, 3.309; Honoring our PACT Act of 2022, Pub. L. 117-168 (2022). As such, the claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for a right knee condition, to include as secondary to service-connected conditions, is remanded. 2. Entitlement to service connection for a left knee condition, to include as secondary to service-connected conditions, is remanded. 3. Entitlement to service connection for a cervical spine condition, to include as secondary to service-connected conditions, is remanded. 4. Entitlement to service connection for diverticulitis, to include as due to herbicide exposure and as secondary to service-connected conditions, is remanded. 5. Entitlement to service connection for hemorrhoids, to include as secondary to service-connected conditions, is remanded. The Board regrets the delay associated with this remand, particularly as these matters are the subject of three prior remands. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the Agency of Original Jurisdiction (AOJ) has not substantially complied with the December 2021 remand directives. See Stegall v. West, 11 Vet. App. 258, 271 (1998). Specifically, in December 2021, the Board instructed the AOJ to obtain advisory opinions from appropriate independent medical experts regarding the nature and etiology of the Veteran's bilateral knee conditions, cervical spine condition, diverticulitis, and hemorrhoids. Additionally, the AOJ was instructed to schedule the Veteran for examinations if the respective physician determined it to be necessary. The record indicates that the AOJ requested examinations through Veterans Evaluation Services (VES) in May 2022. See May 2022 Exam Request. Ultimately, no examinations were conducted, with the AOJ finding that the Veteran had failed to report for his scheduled examinations. See July 2022 Supplemental Statement of the Case (SSOC). However, there is no indication in the claims file that the Veteran was informed of the location, date, and time of the VA examination. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993) (VA has the burden to demonstrate that notice was sent to the claimant's last address of record); see also 38 C.F.R. § 3.1(q) ("Notice means written notice sent to a claimant or payee at his or her latest address of record."). Further, the record reveals that the examination requests were cancelled as VES was unable to contact the Veteran. See June 2022 Exam Request Cancellation. However, there is no indication in the file of any attempts to contact the Veteran regarding such examinations. Moreover, no advisory opinions were obtained, and there is no indication in the claims file that an independent medical expert determined that examinations were necessary in order to provide such opinions. Therefore, in an effort to ensure compliance with VA's duty to assist, the Board finds that a remand is warranted to provide the Veteran with proper notice and an opportunity to appear for a VA examination. See Stegall v. West, supra. NOTABLY, IT MUST BE STRESSED, THAT NOTICE OF THE SCHEDULING MUST BE DOCUMENTED IN THE RECORD; OTHERWISE, IN FAILING TO DO SO, THE VETERAN'S CLAIM CANNOT BE ADJUDICATED BY THE BOARD AND MAY HAVE TO BE REMANDED AGAIN FOR COMPLIANCE WITH THE REMAND. Also, the Veteran is cautioned that failure to report for a scheduled examination or failure to cooperate with any requested development may result in the denial of his claim. 38 C.F.R. § 3.655. Accordingly, the matters are REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the electronic claims file any outstanding pertinent medical records, whether VA or private, to include records relating to treatment at San Juan VAMC from June 2022 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. AFTER COMPLETING THE DEVELOPMENT ABOVE, AND ANY ADDITIONAL DEVELOPMENT WARRANTED BY THE RECORD, obtain an advisory medical opinion from an appropriate independent medical expert, pursuant to 38 U.S.C. § 5109 and 38 C.F.R. § 3.328, regarding the nature and etiology of the Veteran's claimed bilateral knee conditions. The AOJ must follow its established procedures for requesting such an advisory opinion. The entire claims file must be provided to, and reviewed by, the physician. IF, and only IF, the physician determines it to be necessary, an examination should be scheduled and any indicated tests, studies, or evaluations should be conducted. The physician is asked to: (a.) If an examination is conducted, obtain the Veteran's detailed lay history, including onset and progression of symptomatology. (b.) For the Veteran's diagnosed Osgood-Schlatter's disease, address the following: i. Does the evidence clearly and unmistakably show that such condition existed prior to service? THE EXAMINER IS SPECIFICALLY ASKED TO ADDRESS THE JUNE 1968 ENLISTMENT EXAMINATION. ii. If such condition did clearly and unmistakably pre-exist the Veteran's service, does the evidence CLEARLY AND UNMISTAKABLY show that the pre-existing condition DID NOT increase in severity beyond the natural progress of the condition (i.e. the condition was not aggravated by service)? (c.) If the Veteran's diagnosed Osgood-Schlatter's disease did not clearly and unmistakably pre-exist the Veteran's service, address the following: i. Whether it is at least as likely as not (i.e. likelihood is at least approximately balanced or nearly equal) that it had its onset during, or is otherwise related to, the Veteran's active duty service; ii. Whether it is at least as likely as not (i.e. likelihood is at least approximately balanced or nearly equal) that such condition was caused by a service-connected condition; and iii. Whether it is at least as likely as not (i.e. likelihood is at least approximately balanced or nearly equal) that such condition underwent an incremental increase (aggravated), regardless of permanence, by a service-connected condition. (d.) For each diagnosed knee condition other than Osgood-Schlatter's disease, opine as to: i. Whether it is at least as likely as not (i.e. likelihood is at least approximately balanced or nearly equal) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service; ii. Whether it is at least as likely as not (i.e. likelihood is at least approximately balanced or nearly equal) that such condition was caused by a service-connected condition; and iii. Whether it is at least as likely as not (i.e. likelihood is at least approximately balanced or nearly equal) that such condition underwent an incremental increase (aggravated), regardless of permanence, by a service-connected condition. (e.) In formulating the requested opinions, the physician is asked to consider and specifically address: i. The Veteran's lay history; ii. The notation of a prominent left tibial tubercle on the Veteran's July 1970 separation examination; and iii. The Veteran's assertion that he injured his knee several time during service through several falls and by loading and moving the canon. 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. Moreover, any incremental increase in disability need not be permanent. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is at least approximately balanced, or nearly equal, and therefore it is at least as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the physician should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the physician should identify and specifically cite each reference material utilized. If the physician is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The physician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The physician is also advised that noting that a condition did not manifest in service as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 3. After completing the development in Section One above, and any additional development warranted by the record, obtain an advisory medical opinion from an appropriate independent medical expert, pursuant to 38 U.S.C. § 5109 and 38 C.F.R. § 3.328, regarding the nature and etiology of the Veteran's claimed cervical spine conditions. The AOJ must follow its established procedures for requesting such an advisory opinion. The entire claims file must be provided to, and reviewed by, the physician. IF, and only IF, the physician determines it to be necessary, an examination should be scheduled and any indicated tests, studies, or evaluations should be conducted. The physician is asked to: (a.) If an examination is conducted, obtain the Veteran's detailed lay history, including onset and progression of symptomatology. (b.) For each diagnosed cervical spine condition, opine as to: i. Whether it is at least as likely as not (i.e. likelihood is at least approximately balanced or nearly equal) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service; ii. Whether it is at least as likely as not (i.e. likelihood is at least approximately balanced or nearly equal) that such condition was caused by a service-connected condition; and iii. Whether it is at least as likely as not (i.e. likelihood is at least approximately balanced or nearly equal) that such condition underwent an incremental increase (aggravated), regardless of permanence, by a service-connected condition. 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. Moreover, any incremental increase in disability need not be permanent. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is at least approximately balanced, or nearly equal, and therefore it is at least as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the physician should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the physician should identify and specifically cite each reference material utilized. If the physician is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The physician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The physician is also advised that noting that a condition did not manifest in service as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 4. After completing the development in Section One above, and any additional development warranted by the record, obtain an advisory medical opinion from an appropriate independent medical expert, pursuant to 38 U.S.C. § 5109 and 38 C.F.R. § 3.328, regarding the etiology of the Veteran's diverticulitis. The AOJ must follow its established procedures for requesting such an advisory opinion. The entire claims file must be provided to, and reviewed by, the physician. IF, and only IF, the physician determines it to be necessary, an examination should be scheduled and any indicated tests, studies, or evaluations should be conducted. The physician is asked to: (a.) If an examination is conducted, obtain the Veteran's detailed lay history, including onset and progression of symptomatology. (b.) Opine as to: i. Whether it is at least as likely as not (i.e. likelihood is at least approximately balanced or nearly equal) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service, to include conceded herbicide exposure; ii. Whether it is at least as likely as not (i.e. likelihood is at least approximately balanced or nearly equal) that such condition was caused by a service-connected condition, to include medication or treatment therefor; and iii. Whether it is at least as likely as not (i.e. likelihood is at least approximately balanced or nearly equal) that such condition underwent an incremental increase (aggravated), regardless of permanence, by a service-connected condition, to include medication or treatment therefor. 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. Moreover, any incremental increase in disability need not be permanent. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is at least approximately balanced, or nearly equal, and therefore it is at least as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the physician should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the physician should identify and specifically cite each reference material utilized. If the physician is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The physician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The physician is also advised that noting that a condition did not manifest in service as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. The physician is further advised that relying on the list of presumptive conditions under 38 C.F.R. § 3.309(e) to exclude the possibility of service connection on a direct basis would be considered inadequate. 5. After completing the development in Section One above, and any additional development warranted by the record, obtain an advisory medical opinion from an appropriate independent medical expert, pursuant to 38 U.S.C. § 5109 and 38 C.F.R. § 3.328, regarding the etiology of the Veteran's hemorrhoids. The AOJ must follow its established procedures for requesting such an advisory opinion. The entire claims file must be provided to, and reviewed by, the physician. IF, and only if, the physician determines it to be necessary, an examination should be scheduled and any indicated tests, studies, or evaluations should be conducted. The physician is asked to: (a.) If an examination is conducted, obtain the Veteran's detailed lay history, to include onset and progression of symptomatology. (b.) Opine as to: i. Whether it is at least as likely as not (i.e. likelihood is at least approximately balanced or nearly equal) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service; ii. Whether it is at least as likely as not (i.e. likelihood is at least approximately balanced or nearly equal) that such condition was caused by a service-connected condition, to include medication or treatment therefor; and iii. Whether it is at least as likely as not (i.e. likelihood is at least approximately balanced or nearly equal) that such condition underwent an incremental increase (aggravated), regardless of permanence, by a service-connected condition, to include medication or treatment therefor. (c.) In formulating the requested opinions, the examiner is asked to consider and specifically address the Veteran's contention that his hemorrhoids are related to heaving lifting during service. 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. Moreover, any incremental increase in disability need not be permanent. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is at least approximately balanced, or nearly equal, and therefore it is at least as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the physician should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the physician should identify and specifically cite each reference material utilized. If the physician is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The physician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The physician is also advised that noting that a condition did not manifest in service as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. (Continued on the next page) 6. 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 physician for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.