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Court Wins

Board Relies on Inadequate Reasons to Deny Hypertension Secondary to Diabetes, Herbicide Exposure

April Donahower

January 29, 2020

Updated: November 20, 2023


Summary of the Case

The Veteran served on active duty in the U.S. Army from November 1965 to November 1967 as a light weapons infantryman.  He served one year of his active duty service in Vietnam and earned the Purple Heart, among other decorations and medals.  Because of his service in Vietnam, the Veteran is presumed to have been exposed to herbicides, including Agent Orange.  In June 2010, the Veteran filed a claim for disability benefits for high blood pressure, which he contended began in August 1999.  A few months later, the Veteran underwent a VA examination in which the examiner noted that the Veteran was diagnosed with hypertension in 2002 and diabetes in 2009.  The examiner concluded that the Veteran’s hypertension was not a complication of his diabetes, because the hypertension was diagnosed earlier.  In September 2010, the Regional Office granted service connection for diabetes, but denied the hypertension claim.  Following an appeal, the Board remanded the Veteran’s case in April 2014 because the August 2010 examiner failed to opine whether the Veteran’s hypertension was directly related to his military service, and did not provide any rationale as to why the Veteran’s service-connected diabetes did not aggravate his hypertension.

During a second VA examination in October 2014, the examiner provided another negative nexus opinion, which prompted the Regional Office to deny the Veteran’s claim again.  In September 2016, the Board found the October 2014 medical opinion inadequate because it was not supported by adequate rationale.  The following month, the VA examiner provided an addendum opinion, but did not change the conclusion.  In November 2017, the Board obtained a Veterans Health Administration (VHA) opinion where the examiner found that the Veteran’s hypertension was less likely than not related to his herbicide exposure because ‘there are inconclusive studies at this time that support an association between Agent Orange exposure and hypertension.”  The examiner also found that his hypertension was less likely than not due to or aggravated by his diabetes.  Following this opinion, the Board issued a decision denying the Veteran service connection for hypertension.  In its July 2018 decision, the Board relied on the November 2017 VHA examiner’s conclusions.

CCK Appeals Hypertension Denial to CAVC

CCK successfully appealed to the Court of Appeals for Veterans Claims (CAVC) the Board decision that denied entitlement to service connection for hypertension, including as secondary to his service-connected diabetes mellitus type II or exposure to herbicide agents.  Overall, CCK argued that the Board failed to ensure that VA’s duty to assist was satisfied when it relied on an inadequate November 2017 VHA medical opinion.

CAVC Agrees with CCK’s Arguments

CCK argued, and the Court agreed, that the Board failed to provide an adequate statement of reasons or bases for relying on the November 2017 VHA opinion regarding aggravation.  In the November 2017 VHA opinion, the examiner noted that “diabetes can lead to hypertension if there is renal involvement (diabetic neuropathy).”  The Court determined it was unclear how this response answers whether the Veteran’s service-connected diabetes aggravated his hypertension, rather than whether it caused it.  Furthermore, the Court concluded that the VHA examiner was asked to discuss whether there was a “permanent worsening” of the hypertension, as opposed to the correct standard, of whether there was “any increase” in the hypertension symptoms.  Therefore, the Court decided that remand was required for the Board to provide an adequate statement of reasons or bases.

About the Author

Bio photo of April Donahower

April joined Chisholm Chisholm & Kilpatrick in August of 2016 as an Associate Attorney. She currently serves as the Appellate Supervisor in our Veterans Law practice. April’s practice focuses on representing disabled veterans before the Court of Appeals for Veterans Claims.

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