Citation Nr: 1019728 Decision Date: 05/27/10 Archive Date: 06/09/10 DOCKET NO. 03-36 564 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: Ralph J. Bratch, Attorney-at- law ATTORNEY FOR THE BOARD V. Chiappetta, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1970 to January 1978. This matter is before the Board of Veterans' Appeals (the Board) on appeal of a January 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Board notes that the Veteran initially requested a Travel Board hearing at the RO, but in March 2005 withdrew his request and elected to proceed with appellate review. The Board has remanded the Veteran's hypertension claim on two occasions, the first time in February 2007, and most recently in August 2008. In both remands, the Board instructed the agency of original jurisdiction (AOJ) to obtain specific medical opinions regarding whether the Veteran had a hypertension disorder that was caused by, or aggravated by his service-connected disabilities, to include diabetes mellitus, coronary artery disease (CAD), or peripheral neuropathy of the right and left lower extremities. Regrettably, the Veteran's hypertension claim must be remanded for a third time to ensure compliance with the Board's previous remand instructions. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims held that compliance with remand instructions is neither optional nor discretionary. 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. The Board's February 2007 remand requested that a VA examination and medical nexus opinion be obtained as to the nature and etiology of the Veteran's hypertension. The examiner was specifically asked to determine whether it was as likely as not that the Veteran's hypertension was caused or aggravated by the Veteran's service-connected diabetes mellitus, or any other service-connected disability, to include CAD and peripheral neuropathy. Although a VA examination report was completed in January 2008 in response to the Board's remand, the VA examiner crucially did not opine as to whether the Veteran's hypertension was related to his diabetes. Rather, the examiner stated that such could not be determined without resorting to speculation. The examiner also neglected to address any impact that the Veteran's other service-connected disabilities might have on his hypertension. Finally, the examiner made no determination as to whether any of the Veteran's service-connected disabilities aggravated the hypertension beyond its normal progression. See the January 2008 VA examiner's report, page 2. Accordingly, in August 2008 the Board remanded the Veteran's claim for a second time. Again, the AOJ was asked to obtain a medical opinion to ascertain the nature and etiology of the Veteran's hypertension, to include whether it was as likely as not that the Veteran's hypertension was caused or aggravated beyond its normal progression by a service- connected disability. The examiner was specifically asked to provide a rationale for any opinion provided. A VA examination took place in November 2008. As pointed out by the Veteran's representative, the examiner opined that there was no "causative link" between the Veteran's diabetes, CAD and hypertension, and that it is less likely as not that the Veteran's hypertension is due to his service- connected issues. The examiner did not support the opinion with a clinical rationale, made no mention of whether there was aggravation, and did not comment upon any impact the Veteran's service-connected peripheral neuropathy may have on his hypertension. See the November 2008 VA examiner's report, page 3. In an April 2010 letter to the Board, the Veteran's attorney specifically asserted that the VA examiners "continue to fail to address the issue of whether the hypertension was aggravated by the Veteran's service-connected condition[s]," and that the case should be remanded for reconsideration of this issue. The Board agrees that further development is required. Indeed, unsubstantiated or incomplete medical opinions are afforded little, if any, weight or probative value. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) [the failure of the health care provider to provide a basis for his/her opinion goes to the weight or credibility of the evidence]; see also Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."] Further, as noted above, the Board is required to ensure compliance with its remand instructions. See Stegall, 11 Vet. App. at 271. Regrettably, adequate VA medical opinions have not yet been obtained. Accordingly, the case is REMANDED to the Regional Office for the following action: 1. The RO should forward the Veteran's claims folder and a copy of this Remand to the November 2008 VA examiner, if available, or to another physician. The examiner should review the Veteran's VA claims folder and provide an opinion, with supporting rationale, as to each of the following questions: (a). Is it as likely as not that the Veteran has a hypertension disability that was caused or aggravated beyond its normal progression by service- connected diabetes mellitus? (b). Is it as likely as not that the Veteran has a hypertension disability that was caused or aggravated beyond its normal progression by service connected coronary artery disease? (c). Is it as likely as not that the Veteran has a hypertension disability that was caused or aggravated beyond its normal progression by service- connected peripheral neuropathy of the right and left lower extremities? The examiner should make specific and separate determinations as to causation and aggravation. These determinations should be supported by clinical rationale, and should include references to the relevant evidence considered in formulating the opinion. If the examiner concludes that hypertension was aggravated by the Veteran's diabetes, coronary artery disease, and/or peripheral neuropathy, the examiner should determine the increase in severity of the hypertension, and distinguish between the level of aggravation and the natural progression of the disorder. If the examiner finds that there was aggravation, but cannot quantify the degree of aggravation, that fact should be noted. If the examiner determines that another physical examination and/or diagnostic testing of the Veteran are necessary as to the claimed condition, such should be scheduled. A report should be prepared and associated with the Veteran's VA claims folder. 2. Following the completion of the foregoing, and after undertaking any other development it deems necessary, the RO should readjudicate the Veteran's service- connection claim. If the claim is denied, the RO should provide the Veteran with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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. 2009). _________________________________________________ STEVEN L. COHN 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) (2009).