Citation Nr: A25007526 Decision Date: 01/28/25 Archive Date: 01/28/25 DOCKET NO. 230501-343487 DATE: January 28, 2025 REMANDED Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1974 to June 1978, January 1979 to January 1985, and March 1985 to April 1987, with additional National Guard service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2023 Department of Veterans Affairs (VA) Regional Office rating decision. In July 2022, the Veteran submitted VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of an August 2021 decision. In September 2022, the Higher-Level Reviewer determined that there had been a duty to assist error and transferred the claim to the Supplemental Claim decision review option for additional development. In March 2023, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal. In May 2023, the Veteran submitted VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), and selected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the March 2023 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claim of entitlement to service connection for hypertension, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claim. 38 C.F.R. § 3.103(c)(2)(ii). Entitlement to service connection for hypertension is remanded. The Veteran seeks service connection for hypertension. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden?v. Principi,?381 F.3d 1163, 1167?(Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability that is caused or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). The Board acknowledges the Veteran's contention that his hypertension was caused by weight gain due to his service-connected psychiatric disability. As VA is required to consider all theories of service connection reasonably raised by the record, and the etiology of hypertension is a matter that requires medical expertise, VA must consider whether service connection is warranted on a direct basis as well. See Doucette v. Shulkin, 28 Vet. App. 366, 370 (2017); Layno v. Brown, 6 Vet. App. 465, 470 (1994). After review of the record, the Board finds that the Veteran's claim must be remanded to correct an error in satisfying VA's statutory duties under the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act). See 38 U.S.C. § 1168(a); C.F.R. § 20.802(a). On August 10, 2022, during the pendency of the Veteran's hypertension service connection claim, the President signed into law the PACT Act. Pursuant to the PACT Act, when a veteran submits a service connection claim with evidence of a disability and participation in a toxic exposure risk activity (TERA) during active service, but the evidence is insufficient to establish service connection, VA must provide the veteran with a VA examination and obtain a medical opinion addressing the possibility of a nexus between the claimed disability and the TERA. See 38 U.S.C. § 1168(a)(1). The medical opinion must address the synergistic, combined effects of the veteran's total potential toxic exposure through all applicable deployments. 38 U.S.C. § 1168(a)(2). The Veteran has been diagnosed with hypertension and there is evidence of participation in toxic exposure risk activities. Specifically, the Veteran was exposed to contaminated water during service at Camp Lejeune and the Veteran's service treatment records document possible asbestos exposure during active duty service. See Rating Decision, July 2013 (conceding the Veteran's exposure to contaminated water at Camp Lejeune); Asbestos Medical Surveillance Program Questionnaire, April 1985 (indicating that the Veteran may have been exposed to asbestos during a Navy ship overhaul). Accordingly, a VA examination and TERA opinion are required under the PACT Act. The Veteran was afforded VA examinations in July 2021 and October 2022; however, VA has not yet obtained a TERA opinion in relation to the Veteran's hypertension service connection claim. Thus, remand is required to obtain a TERA opinion. The matter is REMANDED for the following action: 1. Perform any development necessary to verify and document the Veteran's in-service toxic exposure, to include toxic exposure related to his military occupational specialty and in-service duties. 2. Obtain an addendum opinion from an appropriate clinician. If deemed necessary by the examiner, afford the Veteran a VA examination. The examiner must review the claims file, to include this Remand, and attest to having fully reviewed it. The examiner is asked to provide a response to the following inquiry Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's hypertension had its onset in service, or is otherwise related to his active duty service? In responding to this inquiry, the examiner must consider and address the synergistic, combined effects of the Veteran's total potential toxic exposure through all applicable deployments. The term "at least as likely as not" 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 as it is to find against the conclusion. The examiner is advised that, while the extent to which a scientific theory is accepted in the scientific community is a relevant consideration, a positive nexus opinion for service connection requires only an approximate balance of positive and negative evidence. Scientific consensus or certainty is not required. Any opinions expressed must include a thorough rationale specific to the circumstances of the Veteran's case. If medical literature is relied upon, the examiner should identify and specifically cite each reference material and discuss how it relates to the Veteran's particular medical history. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation should be provided as to why an opinion cannot be rendered. In providing the requested opinion, the examiner must address the Veteran's assertions on examination and any additional lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner is reminded that an absence of documented treatment in or after service is an insufficient basis, by itself, for a negative opinion. The examiner is reminded that if positive and negative evidence is in approximate balance as to any issue, the Veteran should receive the benefit of the doubt. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Karp, B. 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.