Citation Nr: A25035273 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240731-463918 DATE: April 16, 2025 REMANDED Entitlement to service connection for asthma is remanded. Entitlement to service connection for hypertension is remanded. INTRODUCTION The Veteran served on active duty in the U.S. Army from October 2002 to September 2006, with subsequent periods of active duty for training with the Air Force and Army National Guard. In January and March 2024, the Regional Office (RO) issued rating decisions which addressed the above-noted issues. Thereafter, in July 2024, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), wherein he sought to appeal the claims in the Appeals Modernization Act (AMA) System. He selected the Direct Review option; therefore, the Board may only consider the evidence of record at the time the RO issued the January and March 2024 rating decisions. 38 C.F.R. § 20.301. However, because the Board is remanding the above-referenced claims, any evidence the Board could not consider will be considered by the RO in the readjudication of those claims. 38 C.F.R. § 3.103 (c)(2)(ii). Finally, the Board observes the Veteran sought to appeal issues associated with a January 2023 rating decision in his July 2024 NOD; however, those appeals were not timely filed. See 38 C.F.R. § 20.203(b). As such, the Board will not address these issues. REASONS FOR REMAND Pursuant to 38 C.F.R. § 20.802, unless an issue on appeal can be granted in full, the Board shall remand the appeal to the agency of original jurisdiction for correction of an error on the part of the agency of original jurisdiction to satisfy its duties under 38 U.S.C. § 5103A, if the error occurred prior to the date of the agency of original jurisdiction decision on appeal. The Board may remand for correction of any other error by the agency of original jurisdiction in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim. Under certain circumstances, 38 U.S.C. § 5103A (d) and 38 C.F.R. § 3.159 (c)(4) require VA to obtain a VA examination or obtain a medical opinion. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The failure to provide the above-noted assistance constitutes a due process violation. VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. The Board further notes that on August 10, 2022, the Honoring our Promise to Address Comprehensive Toxins (PACT) Act was signed into law. The PACT Act created a presumption of exposure to burn pit and other toxins (BPOT) and additional procedural rights for veterans with claimed toxic exposure risk activity (TERA). It also requires VA to obtain examinations which consider 1) the total potential exposure through all applicable deployments; and 2) the synergistic, combined effect of all toxic exposure risk activities of the veteran. In this case, the RO drafted a TERA memorandum for the file, and also compiled an Individual Longitudinal Exposure Record (ILER) to corroborate the Veteran's total reported exposures. The ILER document specifically indicates respiratory disorders, to specifically include asthma, are known conditions associated with many of the toxic exposures the Veteran sustained in service. Unfortunately, the RO has not obtained a VA examination or medical opinion addressing the Veteran's claim, because the RO determined the Veteran did not have a current diagnosis. As noted above, a diagnosis is not necessary to trigger VA's duty to provide an examination, rather recurrent symptoms are sufficient. The Board finds the Veteran's claim of asthma demonstrates evidence of current respiratory symptoms. As such, an examination and medical opinions are necessary. With respect to the Veteran's claim for hypertension, the RO obtained a VA examination in September 2023. Following his examination, the Veteran was diagnosed with hypertension. However, the examiner concluded the Veteran's condition was less likely than not caused by his TERA exposures in service. In February, the RO obtained an additional medical opinion from an examiner who did not conduct the Veteran's September 2023 examination. In her opinion, the examiner concluded the Veteran's hypertension was less likely than not caused by his service connected disabilities. Unfortunately, this opinion leaves questions unanswered. In particular, the examiner noted obesity is a known risk factor in the development of hypertension; however, the examiner failed to state whether the Veteran's obesity was caused by his service-connected disabilities. The examiner also noted a correlation between sleep apnea and hypertension. In particular, the examiner indicated patients with sleep apnea have elevated blood pressure readings both at night and during the daytime. Though the examiner indicated a continuous positive airway pressure (CPAP) machine, like the one used by the Veteran, can abolish nighttime hypertension, this does not bode true for elevated daytime hypertension. More importantly, the examiner failed to explain how or why she concluded the Veteran's sleep apnea did not cause his hypertension. Additionally, the RO has not obtained a medical opinion as to whether the Veteran's hypertension was aggravated by his service-connected disabilities. Based on the foregoing pre-decisional duty to assist errors, the Board finds a remand is necessary. Accordingly, these matters are REMANDED for the following actions: Obtain a VA examination and medical opinions from an examiner with sufficient expertise to address the etiology of the Veteran's claimed hypertension and respiratory disorder. All pertinent evidence of record must be made available to and reviewed by the examiner. Initially, the examiner is asked to state whether the Veteran's hypertension or respiratory disorder at least as likely as not (likelihood is approximately balanced or nearly equal, if not higher) originated during his period of active service or are otherwise etiologically related to his active service, to include his exposure to toxic and hazardous substances therein. The examiner should also state whether the Veteran's hypertension at least as likely as not (likelihood is approximately balanced or nearly equal, if not higher): a) was caused by his service-connected disabilities; or b) was worsened to any degree by service-connected disabilities. In this respect, the examiner is asked to consider the Veteran's weight as a potential intermediate step between his service-connected disabilities and his hypertension. Specifically, the examiner is asked to consider and expressly discuss whether the Veteran's weight resulted either directly from his service-connected disabilities or from medications taken therefor, and if so, whether the Veteran's hypertension may have been consequentially associated with his weight. For these opinions, the examiner should note veterans are generally competent to attest to factual matters of which they have first-hand knowledge, including events and symptoms. The examiner is asked to consider and expressly discuss the Veteran's reports relative to the nature and etiology of his claimed disabilities. If the examiner finds any reports provided by the Veteran to lack reliability, the examiner should state why. The examiner must also provide a complete rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Fraser, Gordon 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.