Citation Nr: 0821842 Decision Date: 07/02/08 Archive Date: 07/14/08 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 history of myocardial infarction, including as secondary to service connected disability of renal colic. REPRESENTATION Appellant represented by: Michael E. Wildhaber, Attorney at Law WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The veteran had active service from September 1948 to January 1954. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 1997 rating decision of the Winston-Salem, regional office (RO) of the Department of Veterans Affairs (VA). This appeal was previously before the Board in July 2001 and September 2003. On both occasions, it was remanded to the RO for additional development. The appeal was returned to the Board in November 2006, at which time the Board issued a decision that denied the claim on appeal. The veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In February 2008, the Court granted a joint motion to remand the veteran's appeal. The appeal has been returned to the Board for action consistent with the instructions contained in the joint motion. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the veteran if further action is required. REMAND The February 2008 joint motion found that the Board's September 2003 remand instructions had not been completely followed. The motion indicated that an additional remand of the veteran's appeal was necessary for several reasons. The joint motion stated that the August 2005 cardiology and nephrology examinations did not provide a full and complete opinion discussing the etiology and onset of the veteran's hypertension, including whether the veteran's service connected renal colic may have caused or permanently worsened the veteran's hypertension. The cardiology examination failed to address either a February 2001 opinion from Dr. Bash or a May 2002 opinion from Dr. Butler. The nephrology opinion did not provide the reasons for rejecting the opinion from Dr. Bash and also failed to address the opinion from Dr. Butler. The Board finds that additional examinations are required in order to obtain these opinions. Furthermore, the joint motion noted that both opinions failed to address the possibility of secondary service connection for the veteran's hypertension as a result of his service connected disabilities. The Board finds that the additional examinations must address the etiology and probability of any causal relationship between the veteran's service connected disabilities and his hypertension. Finally, the motion found that the VA examiners failed to address favorable evidence of record, including an August 1997 diagnosis from the veteran's treating physician, and a July 2005 cardiac consultation. The Board directs that the VA examiners must address all evidence, both favorable and unfavorable, in the reasons and basis for the requested opinions. The Board is obligated by law to ensure that the RO complies with its directives, as well as those of the Court. The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court 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). Therefore, in order to avoid any additional remand, the RO must ensure that the Board's instructions are completed. Accordingly, the case is REMANDED for the following action: 1. 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 nephrologist 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 must 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, either (1) caused or (2) permanently worsened any essential hypertension or hypertensive cardiovascular disease found to be present. The examining cardiologist must also 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 must address the opinions expressed by both Dr. Bash and Dr. Butler in their written submissions of February 2001 and May 2002. The physicians must not limit their opinions to a simple rejection or acceptance of the opinions expressed by Dr. Bash and Dr. Butler, but must also address the rationale for these opinions, compare and contrast any difference of opinions with Dr. Bash and Dr. Butler, and identify the evidence used in support of their own opinions. Each physician must also address other items of evidence which appear to be favorable to the veteran's contention that his hypertension with history of myocardial infarction is the result of active service or is secondary to his service connected renal colic. This should include but is not limited to the August 1997 VA diagnosis and a July 2005 VA consultation with opinion. Again, if the examiner's opinions differ from these findings, the specific reasons and bases for rejecting these opinions and in support of their own opinions should be provided. Finally, each physician is cautioned not to rely on the opinions expressed in the August 2005 and September 2005 VA examinations when formulating their own opinions. 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. The corrective action should continue until compliance has been completed. 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 or matters 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. 2007). _________________________________________________ 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) (2007).