Citation Nr: 1114701 Decision Date: 04/14/11 Archive Date: 04/21/11 DOCKET NO. 01-05 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a rating higher than 10 percent for essential hypertension, including determining whether it was appropriate to separate this rating from a 30 percent rating for coronary artery disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Rochelle E. Richardson, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1952 to December 1954. This appeal to the Board of Veterans' Appeals (Board) originated from a July 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Initially, the Veteran was assigned a 30 percent rating for essential hypertension only. But in a November 2003 decision, the RO increased his combined rating to 40 percent - retroactively effective as of March 12, 2002, by assigning a 30 percent rating for his coronary artery disease (CAD) and a 10 percent rating for his essential hypertension. See 38 C.F.R. § 4.25 (combined ratings table). The Board issued a decision in May 2004, in relevant part, denying a rating higher than 30 percent for the CAD and a rating higher than 10 percent for the essential hypertension. The Veteran appealed that Board decision to the U. S. Court of Appeals for Veterans Claims (Court/CAVC). In a March 2007 memorandum decision, the Court vacated the portion of the Board's March 2004 decision that had denied a rating higher than 10 percent for the essential hypertension. The Court affirmed the remaining portions of that Board decision denying a rating higher than 30 percent for the CAD and determining there was not new and material evidence to reopen a claim for service connection for a kidney disorder. The Court entered judgment in April 2007 and returned the file to the Board for further development and readjudication of this vacated claim in compliance with directives specified. In April 2009, to comply with the Court's decision, the Board in turn remanded this remaining claim to the RO via the Appeals Management Center (AMC) in Washington, DC. The additional development of this remaining claim included having the Veteran undergo another VA compensation examination to reassess the severity of his hypertension to, in turn, determine whether there had been the required sustained and material improvement in this condition to justify reducing the rating for it from 30 to 10 percent. The Veteran had this additional VA compensation examination in May 2010 and, after considering the results, the RO issued a supplemental statement of the case (SSOC) in September 2010 continuing to deny a rating higher than 10 percent for the hypertension. So the RO returned the file to the Board for further appellate consideration of this remaining claim. Because of his age, the Board has since, in March 2011, advanced the Veteran's appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2010). See also 38 U.S.C.A. § 7107(a)(2) (West 2002). Regrettably, however, the Board must again remand this remaining claim to the RO via the AMC for still further development and consideration. REMAND As mentioned, previously, in April 2009, the Board remanded this remaining claim to the RO via the AMC. In that remand, the Board instructed the RO/AMC to schedule the Veteran for a VA compensation examination to reassess the severity of his hypertension - including especially determining whether it has improved since March 12, 2002 (the effective date of its reduction in rating from 30 to 10 percent); and if it has improved, additional medical comment also was needed to determine whether the material improvement found will be maintained under the ordinary conditions of the Veteran's life and work. See 38 C.F.R. §§ 3.344(a), 3.951(a) (2010). See also Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown v. Brown, 5 Vet. App. 413, 419 (1993); and Faust v. West, 13 Vet. App. 342, 350 (2000). The Board also instructed the RO/AMC to send the Veteran a corrective Veterans Claims Assistance Act (VCAA) notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that includes an explanation of the information or evidence needed to establish a disability rating and effective date for the claim on appeal, as outlined by the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran is entitled, as a matter of law, to compliance with the directives specified in that remand, though this compliance need only be substantial, not exact. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146- 47 (1999). In May 2010, pursuant to the Board's remand directive, the Veteran was provided another VA Compensation and Pension Examination (C&P Exam) to reassess the severity of his hypertension and, as mentioned, to specifically determine whether there has been the required sustained and material improvement in it to justify reducing the rating for this disability from 30 to 10 percent as of March 12, 2002. See also Chotta v. Peake, 22 Vet. App. 80, 85 (2008) (another precedent case involving a claim for an earlier effective date wherein a Court-granted joint motion suggested the Board consider obtaining a "retrospective" medical evaluation and opinion to determine the etiology and severity of a disability several years prior). The report of this May 2010 remand exam indicates the Veteran's hypertension was well-controlled at the time of this most recent evaluation. His blood pressure readings were 109/49, 113/50, and 112/50. He was on poly pharmacotherapy (beta blockers, alpha blockers, calcium channel blockers, ace inhibitors, and diuretics) for control of his hypertension. Over the years, the medication has led to significant improvement in his hypertension - particularly since the March 12, 2002 blood pressure reading of 172/84. There has been significant improvement to a level of blood pressure control from the June 2009 exam. However, this examiner could not provide an opinion without resorting to speculation as to whether the Veteran's hypertension would remain controlled under ordinary conditions of his life and work, as long as he remains compliant with his medication regimen. In Jones v. Shinseki, 23 Vet. App. 382 (2010), the Court admonished the Board for relying on a VA examiner's inability to provide the requested medical opinion without speculating as justification for denying the Veteran's claim. In Jones, the Court noted it was unclear whether the examiners were unable to provide this requested definitive medical comment because they actually were unable to since the limits of medical knowledge had been exhausted or, instead, for example, needed further information to assist in making this determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data. The Court in Jones acknowledged there are instances where a definitive opinion cannot be provided because required information is missing or can no longer be obtained or current medical knowledge yields multiple possible answers with none more prevalent than another. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (noting the Board need not obtain further medical evidence where the medical evidence "indicates that determining the cause is speculative"). The Court in Jones held, however, that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. This May 2010 VA C&P Exam report indicates the examiner reviewed the Veteran's service treatment records, VA treatment records, and claims file in coming to this opinion. However, it also expressly indicates the Veteran's private medical records were not reviewed, so not considered. As previously mentioned in the Board's April 2009 remand, the record on appeal includes both private and VA treatment records. And in assessing the severity of this service-connected hypertension, the Board, RO, and VA examiners are required to consider both, so long as they are relevant. See 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Moreover, when previously remanding this claim, the Board specifically noted the Veteran was to undergo a VA examination with an examiner who can examine the evidence of record and provide the requested opinions. In his November 2010 Written Brief Presentation, the Veteran's representative resultantly argues that the May 2010 VA C&P Exam report is inadequate because that VA examiner did not review and consider the Veteran's private treatment records in conjunction with that examination and opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). And see Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (indicating an opinion is considered adequate when it is based on consideration of an appellant's medical history and examinations and describes the disability in sufficient detail so the Board's evaluation of the claimed disability is a fully informed one). Because the VA examiner expressly indicated the Veteran's private treatment records were not reviewed or considered in coming to the conclusion that an opinion could not be provided - without resorting to speculation - regarding whether there had been sustained and material improvement in his hypertension, a remand for a supplemental opinion concerning this is warranted. See Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008). The Veteran also claims the May 2010 VA examination was inadequate because the VA examiner was a nurse practitioner (NP), not a physician, i.e., medical doctor (M.D.). According to M21-1MR, Part III, Subpart IV, Chapter 3, Section D 18(a), an examination report must be signed by a medical doctor, unless the examination was performed by a midlevel Veteran's Health Administration (VHA) clinician, either a physician's assistant or nurse practitioner, when the examination does not require a specialist. Because the VA examiner in this particular instance was a nurse practitioner and nurse practitioners are fully capable of reading blood pressure measurements and commenting on the control of hypertension, this examination was not inadequate on this basis. See M21-1MR, Part III, Subpart IV, Chapter 3, Section D 18(a) (July 14, 2010). The Board may assume the competency of any VA medical examiner, including nurse practitioners, as long as, under 38 C.F.R. § 3.159(a), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). VA need only affirmatively establish this examiner's competency or qualifications where, as here, the appellant has challenged it. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). And finally, in June 2009, to comply with the Board's other remand directive, the Remand & Rating Development Team at the RO in Huntington, West Virginia, sent the Veteran a letter providing VCAA notice in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). However, that notice did not include an explanation of the information or evidence needed to establish a disability rating and effective date for the claim on appeal, as outlined by the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Therefore, the Board finds the RO/AMC failed to substantially comply with this remand directive as well. See again Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); and Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008). Accordingly, the claim is again REMANDED for the following additional development and consideration: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Send the Veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that includes an explanation of the information or evidence needed to establish a disability rating and effective date for the claim on appeal, as outlined by the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006). [Note: the letter sent in June 2009, following and as a result of the Board's prior April 2009 remand, does not contain this necessary additional information.] 2. If possible, have the VA compensation examiner that evaluated the Veteran in May 2010, also following and as a result of the Board's prior April 2009 remand, submit an addendum statement providing more definitive comment on the severity of the Veteran's hypertension, and especially in terms of whether there has been sustained and material improvement in it since March 12, 2002, such that it will be maintained under the ordinary conditions of his life and work - so if accepting that his treatment medication is keeping his blood pressure under sufficient control. To assist in making this important determination, the claims files (currently 3 volumes), including all private treatment records, must be made available to this examiner for consideration of the pertinent history of this condition - particularly since March 12, 2002. The examiner should fully explain any opinion(s) provided, whether favorable or unfavorable, if necessary citing to specific evidence in the file. And the examiner should make every effort to provide this requested opinion. If it is again determined that she simply cannot without resorting to speculation, then she must discuss why this is not possible or feasible - such as she needs the benefit of additional evidence or information (e.g., additional records and/or diagnostic studies or other procurable and assembled data), or current medical knowledge yields multiple possible answers with none more prevalent than another, etc. If, for whatever reason, this examiner is no longer available to provide this additional comment, then have someone else equally qualified make this necessary determination. In this eventuality, it may be necessary to have the Veteran reexamined, but this is left to the designee's discretion. 3. Then readjudicate the claim in light of any additional evidence obtained. If the disposition remains unfavorable, send the Veteran and his representative another SSOC and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration of this remaining claim. The Veteran has the right to submit additional evidence and argument concerning the claim 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 Supp. 2010). _________________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2010).