Citation Nr: 0813607 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 99-18 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES Entitlement to service connection for hypertension. Entitlement to service connection for headaches, to include as due to undiagnosed illness or a medically unexplained chronic multisymptom illness. Entitlement to service connection for psychiatric disability, to include as due to undiagnosed illness or a medically unexplained chronic multisymptom illness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Tahirih S. Samadani, Associate Counsel INTRODUCTION The veteran had inactive duty for training from November 1977 to June 1978 and active duty from November 1990 to May 1991, including service in the Southwest Asia theater of operations from December 1990 to April 1991. He also had service in the reserves. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 1998 rating decision rendered by the Buffalo, New York, Regional Office (RO) of the Department of Veterans Affairs (VA). In October 1999, the veteran testified at a hearing before an RO hearing officer. A transcript of this hearing is associated with the claims folders. When this case was most recently before the Board in May 2007, it was decided in part and remanded in part. It is now before the Board for further appellate action. REMAND Pursuant to the Board's remand directive, the veteran was afforded an examination in July 2007. The Board finds the report of this examination to be inadequate. Although the examiner states that he reviewed the claims files, he did not provide an opinion as to whether the blood pressure readings from Univera of Central New York that were taken within one year after the veteran's discharge from service show that the veteran's hypertension is etiologically related to service. Treatment records from Univera of Central New York show a blood pressure reading of 130/100 in March 1992, or within one year of the veteran's discharge from active service. Thereafter, a blood pressure reading of 112/80 in April 1992 is documented, but in July 1992, a reading of 120/90 is noted. The foregoing readings show a high diastolic pressure. VA regulations provide that the term "hypertension" means that the diastolic blood pressure is predominantly 90mm. or greater. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2006). Thus, an opinion concerning etiology of the veteran's hypertension is still required. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App 268 (1998). As noted in the Board's previous remand, the Board observes that the March 2005 VA examiner opined that the veteran's headaches were as likely as not related to the sustained high blood pressures and that it was likely that his headaches would be relieved if his blood pressure remained within normal limits. A similar conclusion was drawn by a VA examiner who examined the veteran in September 2002. As such, the claim of entitlement to service connection for headaches is inextricably intertwined with the claim for service connection for hypertension. The veteran may be entitled to secondary service connection for headaches if service connection is established for hypertension. 38 C.F.R. § 3.310(a) (2007). The veteran also underwent a VA mental examination in August 2002. The VA examiner diagnosed the veteran with depressive disorder not otherwise specified, depression secondary to current medical complaints. The examiner maintained that the veteran's depression was directly connected to and the result of his current medical complaints. The veteran's current medical complaints include hypertension and headaches. Therefore, the issue of entitlement to service connection for a psychiatric disability is similarly intertwined with the issues of entitlement to service connection for hypertension and headaches. Thus, the Board will defer adjudication of the headache and psychiatric disability issues. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should return the claims folder, to include a copy of this remand, to the physician who rendered the July 2007 VA opinion in order to obtain an addendum with an opinion as to whether there is a 50 percent or better probability that the veteran's hypertension is etiologically related to his military service. The examiner should specifically address the blood pressure readings taken at the Univera of Central New York. The rationale for the opinion must also be provided. If the July 2007 VA examiner is not available, the RO or the AMC should arrange for the claims folder to be reviewed by another appropriate physician who should provide the required opinion and supporting rationale. 2. The RO or the AMC should also undertake any other indicated development. 3. Then, the RO or the AMC should readjudicate the issues on appeal based on a de novo review of the record. If the benefits sought on appeal are not granted to the veteran's satisfaction, the veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is otherwise notified, but he has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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. 2006). _________________________________________________ Shane A. Durkin 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) (2007).