Citation Nr: 1749083	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  10-28 963	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for hypertension, to include as secondary to service connected coronary artery disease or diabetes mellitus, and to include as secondary to herbicide exposure.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

P.S. McLeod, Associate Counsel 



INTRODUCTION

The Veteran served on active duty from April 1969 to April 1971 to include service in the Republic of Vietnam.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  

The matter was previously before the Board in September 2016 and the Board issued a decision, in pertinent part, denying service connection.  The Veteran appealed this decision to the U.S. Court of Appeals for Veterans Claims (CAVC).  In September 2017, the CAVC granted a joint motion for remand (JMR) vacating the Board's previous denial of service connection for hypertension and remanding back to the Board for further clarification and development.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

The Veteran has alleged generally that his hypertension is etiologically related to his conceded exposure to herbicides in service or secondary to his service-connected coronary artery disease and diabetes.  The parties to the Joint Motion agreed that the Board decision did not adequately address whether the Veteran's hypertension was related to herbicide exposure.  

Although hypertension is not a disability presumptively associated with herbicide exposure (see 38 C.F.R. § 3.309(e) (2016)), the National Academy of Sciences (NAS) has placed hypertension in the category of "limited or suggestive evidence of an association" with exposure to herbicides.  See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924, 47,926 (Aug. 10, 2012).  

On remand, a medical opinion should be obtained to address whether the Veteran's hypertension is the result of in-service herbicide exposure.  See 38 C.F.R. § 3.159(c)(4). See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The opinion should also address whether the Veteran's hypertension is caused or aggravated by his service-connected diabetes and/or coronary artery disease.  A January 2015 medical opinion that addressed the question previously is not adequate.  

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the claims file all VA treatment records dated since February 2015.  Any negative response should be recorded in the claims file.

2.  After completion of the foregoing, forward the record to the examiner who conducted the January 2015 VA heart conditions examination (or another appropriate examiner if that examiner is unavailable) for supplemental comment with regard to the claim for hypertension.  Copies of all pertinent records must be made available to the examiner for review prior to the exam.  If the opinion provider determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for an appropriate examination.

Based on the examination, if deemed necessary, and review of the record, the examiner is requested to provide an opinion addressing the following questions:

(a) Is it as least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed hypertension had its onset in service or is otherwise related to any incident of his active duty service, specifically to include as a result of conceded herbicide exposure?

The examiner must specifically reference, in the opinion rationale, the National Academy of Sciences (NAS) Veterans and Agent Orange Updates, to include in 2010 and 2012, which stated that there was "limited or suggestive" evidence of an association between hypertension and herbicide exposure. 

In addition, the examiner must discuss whether they find the NAS Updates to be persuasive and weigh the relative risks presented by the Veteran's presumed Agent Orange exposure and other relevant factors. 

The examiner is advised that, although VA has not determined that hypertension qualifies for presumptive service connection based on herbicide exposure, this does not preclude a nexus to service.  Instead, the examiner must consider all pertinent evidence, and offer an opinion as to whether the Veteran's hypertension is due to such exposure.

(b) If the answer to (a) is no, is it least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed hypertension is caused or aggravated by either his service-connected diabetes or coronary artery disease?  

The examiner is informed that aggravation here is defined as any increase in disability.  If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. 

A full rationale is to be provided for all stated medical opinions.  If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 

3.  Thereafter, review the expanded record and reconsider the remanded claim.  If the claim remains denied, issue a supplemental statement of the case and afford the Veteran and his representative an opportunity to respond.  Thereafter, return the case to the Board for appellate review if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




_________________________________________________
M.E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2016).
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