Citation Nr: 0325482 Decision Date: 09/29/03 Archive Date: 10/03/03 DOCKET NO. 98-00 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for hypertension, with a history of myocardial infarction, claimed as secondary to service-connected renal colic. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Martin F. Dunne, Counsel INTRODUCTION The veteran served on active duty from September 1948 to January 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board remanded this case to the RO in July 2001 for further development. The case was then returned to the Board. REMAND In December 2002, the Board undertook additional development on the issue of entitlement to service connection for hypertension, with a history of myocardial infarction, claimed as secondary to service-connected renal colic, pursuant to authority granted by 38 C.F.R. § 19.9(a)(2) (2002). The veteran was notified of the Board's action. However, in the recently decided Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the Federal Court held that 38 C.F.R. § 19.9(a)(2) was invalid because, in conjunction with the amended regulation codified at 38 C.F.R. § 20.1304, it allowed the Board to consider additional evidence without having to remand the case to the agency of original jurisdiction for initial consideration and without having to obtain the appellant's waiver. The Court found that it was contrary to the requirement of 38 U.S.C.A. § 7104(a) (West 2002) that "[a]ll questions in a matter which...is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary." In this case, the additional evidence received by the Board pursuant to its additional development of the above-mentioned issue consists of copies of the veteran's VA medical records from the VA Medical Center, Fort Harrison, Montana. Also received were medical statements, both dated in May 2002, from H. Butler, M.D., and C. Bash, M.D., containing medical opinions pertaining to the etiological relationship between the veteran's hypertensive disease and his service-connected renal colic. The veteran has not had the benefit of initial consideration of this evidence by the RO, nor has the Board received from him a waiver of initial consideration of this additional evidence by the RO. In addition, pursuant to the Board's July 2001 remand, the instructions included that the veteran undergo VA medical examinations by a cardiologist and nephrologist who had not previously examined him to determine the nature and extent of any essential hypertension or hypertensive cardiovascular disease, as well as to offer medical opinions as to any etiological relationship between currently found hypertensive disorder and the veteran's service-connected renal colic, to include aggravation of hypertensive disorder by his service- connected renal colic, or to a disease noted while the veteran was on active military service. The examiners were further to be requested to address the opinions expressed by Craig Bash, M.D., in his written medical statement of February 2001. In this regard, it is noted that Dr. Bash, a neuro-radiologist, submitted this opinion at the behest of the service representative; the opinion was based on a records review and research of a medical text, but not on examination of the veteran. In September 2001, the veteran underwent a VA genitourinary examination; unfortunately, the examining physician had previously examined the veteran, although the Board had explicitly requested a physician who had not previously done so examine him. Also, the Board explicitly requested the veteran undergo VA cardiology and neurology examinations, with the examining physicians offering opinions as to their findings. This was not done. The Board points out that a remand by the Board confers on the veteran, as a matter of law, the right to compliance with the remand instructions and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, if the Board proceeds with final disposition of an appeal without compliance with the remand orders and instructions, the Board, itself, errs in failing to ensure compliance. Id. In fact, the veteran has raised the question of noncompliance with the Board's July 2001 remand, particularly with the absence by the VA examining physician of comments addressing those of Dr. Bash, as related in his February 2001 medical statement. The Board offers the reminder that the Veterans Claims Assistance Act of 2000 (VCAA), is applicable to this appeal, as codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In view of recent legislation and Court actions, this case is hereby REMANDED to the RO for the following action: 1. The RO must review the claims file and ensure that all notification and development action required by the VCAA is completed. See 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002). If merited, the RO should undertake any additional development deemed necessary. In particular, the RO should ensure that the new notification requirements and development procedures of the Act are fully complied with and satisfied. 2. The RO should arrange for the veteran to undergo VA examinations, either at a VAMC or on a fee-basis, by a cardiologist and a nephrologists, who have not previously examined him to determine the nature and extent of any essential hypertension or hypertensive cardiovascular disease found to be present. Any indicated studies should be undertaken, and all manifestations of current disability should be described in detail. The veteran's entire claims file, to include his service medical records, along with a copy of this remand, must be made available to examining physicians for review in this case. Each of the examining physicians are to offer opinions as to whether it is at least as likely as not that the veteran's service-connected renal colic, and any associated complications, caused or permanently worsened any essential hypertension or hypertensive cardiovascular disease found to be present. The examining cardiologist is also requested to offer an opinion as to whether it is at least as likely as not that any essential hypertension or hypertensive cardiovascular disease found to be present is related to the complaints and findings noted in service, as suggested by Dr. Bash (see his medical statements dated in February 2001 and May 2002) and Dr. Butler (see his medical statement dated in May 2002). Complete rationale, with specific references to the veteran's claims file, including the service medical records, should be provided for support of the opinions and conclusions expressed. In particular, each physician is requested to address the opinions expressed by both Dr. Bash and Dr. Butler in their written submissions of February 2001 and May 2002. The examiners' attention is directed to the fact that neither of these physicians conducted a physical or other examination of the veteran himself, and submitted opinions following a file review. The veteran is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 3. To help avoid future remand, the RO must ensure that all requested development has been completed, to the extent possible, in compliance with this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, 11 Vet. App. at 268. 4. Following the completion of the above-mentioned procedures, the RO should adjudicate the issue of entitlement to service connection for hypertension, with a history of myocardial infarction, claimed as secondary to service-connected renal colic in light of all applicable evidence of record, to include the additional medical evidence received by the Board while the claim was on appeal, and all pertinent legal authority, to include consideration of secondary service connection under Allen v. Brown, 7 Vet. App. 439 (1995). 5. If the action taken on the claim remains adverse to the veteran, he and his representative should be furnished a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. 6. Thereafter, the veteran and his representative should be given an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the regional office. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. _________________________________________________ N. R. ROBIN 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) (2002).