Citation Nr: 1005303 Decision Date: 02/04/10 Archive Date: 07/08/10 DOCKET NO. 06-13 192 DATE FEB 04 2010 On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to service connection for hypertension. ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The Veteran had active service from June 1960 to November 1967. He also had periods of service with the United States Naval Reserves in the years thereafter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the VARO in Houston, Texas, that, in pertinent part, denied entitlement to service connection for hypertension. The case was remanded by the Board in May 2009 for further development. It has been returned to the Board for appellate review. REMAND Following the Board's May 2009 remand, the Veteran's medical records were reviewed by a VA health care professional in October 2009. That individual was the same person who conducted an examination of the Veteran in October 2008 at the VA Medical Center in Houston, Texas. She was asked to indicate whether, in her opinion, it was at least as likely as not that the currently diagnosed hypertension was attributable to the Veteran's active service. She was told that if she could not express an opinion without regard to speculation, this should be so indicated. Unfortunately, following review of the entire claims file, the health care professional indicated that it was "unclear" to her that the Veteran was on active duty or was in the naval reserves at times when abnormal readings were taken, and "therefore it would have been speculation to state that his military duty is related to his hypertension." She did not give any reasoning as to why such a question was so outside the norm of medical expertise that such an opinion could not be made without resort to speculation. Accordingly, the Board finds the opinion of record is not adequate and it is not supported by a complete rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). When information before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill the statutory duty to assist the Veteran in developing facts pertinent to his claim. Ascherl v. Brown, 4 Vet. App. 371,377 (1993). - 2 - In view of the foregoing, the case is REMANDED for the following: 1. Copies of all outstanding records of treatment, VA and non-VA, for the Veteran for hypertension should be obtained and made part of the claims file. 2. The health care professional who conducted the October 2007 examination of the Veteran and reviewed the claims file in October 2009 at the VA Medical Center in Houston, Texas, should be contacted and asked to explain why she cannot provide an opinion as to the etiology of the hypertension without resort to speculation. If she remains unable to provide an opinion as to whether it is more likely than not that any current hypertension is related to the Veteran's active service, she should so indicate and explain why the matter is so outside the norm of usual practice that she cannot make such an opinion. If she is not able to do so, an opinion should be requested from another physician knowledgeable in hypertensive disorders for the purpose of determining whether it is at least as likely as not (50 percent current disability) that the Veteran's current hypertension is related to his active service. If an examination is deemed advisable, one is authorized. That individual is advised that the term "as likely as not" does not meet within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as defined against causation. More likely and as likely support the causal relationship for a finding of aggravation; less likely weighs against the claim. The individual is requested to provide a complete rationale for any - 3 - opinion expressed. If the clinician is unable to answer any question presented without result to speculation, he or she should so indicate and explain why the particular case in question is so far outside the norm of usual practice that such an opinion cannot be expressed without resort to speculation. 3. Thereafter, the claim for service connection for hypertension must be readjudicated on the basis of the relevant evidence of record and of governing legal authority. If the benefit is not granted to the Veteran's satisfaction, he should be provided with a supplemental statement of the case and be afforded the appropriate time period within which to respond. Then, the case should be returned to the Board, if otherwise in order. The Board intimates no opinion as to any final outcome warranted. The appellant 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 51 09B, 7112). V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals -4- 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) (2004). - 5 -