Citation Nr: 1046166 Decision Date: 12/09/10 Archive Date: 12/20/10 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 renal colic. REPRESENTATION Appellant represented by: Michael E. Wildhaber, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from September 1948 to January 1954. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 1997 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In July 2001 and September 2003, the Board remanded the case for further action by the originating agency. In November 2006, the Board denied the Veteran's claim for service connection for hypertension. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court). In February 2008, the Court granted a Joint Motion for Remand filed by the parties, which requested that the November 2006 Board decision be vacated and remanded. The appeal was returned to the Board and, in July 2008, the Board remanded the matter for further development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board's June 2008 remand ordered that the Veteran should be provided VA examinations with a cardiologist and nephrologist. After examining the Veteran, the examiners were to provide medical opinions addressing the Veteran's claim of service connection a direct and secondary basis and include a discussion of the medical opinions from Drs. Bash and Butler that support the Veteran's claim. In response to the June 2008 remand, the Veteran was provided a VA examination in September 2008 with a VA physician specializing in cardiothoracic surgery. The VA examiner conducted both a cardiac and genitourinary examination and provided a well- reasoned and well-supported medical opinion against the claim, addressing both theories of entitlement and directly addressing the opinions in support of the claim. The record also contains two medical opinions from a second VA physician (presumably a nephrologist, although the record contains no indication of the doctor's specialty), but these opinions are not adequate and do not comply with the Board's remand instructions. The June 2008 remand specifically instructed that the Veteran be provided two separate VA examinations, one conducted by a cardiologist and one conducted by a nephrologist. Although there is nothing in the September 2008 genitourinary examination conducted by the cardiothoracic surgeon to indicate that it is less than a thorough and complete examination, the medical opinions provided by the second VA physician in February and June 2009 are not responsive to the Board's remand order. The February 2009 opinion does not include a discussion of any specific evidence in the claims file, and while the June 2009 opinion addressed Dr. Bash's medical opinion, the VA physician noted that he was unable to locate Dr. Butler's May 2002 opinion. In addition, neither the February 2009 or June 2009 opinions included a discussion of the other evidence of record supporting the Veteran's claim, such as an August 1997 VAMC finding that the Veteran's elevated blood pressure was caused by the effects of his kidney stones on renal function and the July 2005 opinion of a VAMC cardiologist. 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). The Board regrets further delay in this case, but finds that the claim must be remanded to ensure compliance with its previous remand instructions. Specifically, the Veteran should be provided a VA genitourinary examination with a nephrologist that includes a medical opinion addressing the etiology of the Veteran's hypertension and discusses the evidence of record supporting the claim. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Schedule the Veteran for a VA genitourinary examination, either at a VAMC or on a fee-basis, by a nephrologist who has not previously examined him to determine the nature and extent of any essential hypertension. The claims file must reflect that the examination was performed by a nephrologist. 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 treatment records and a copy of this remand, must be made available to examining physician for review. The nephrologist must offer an opinion 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 nephrologist must provide a full rationale for any medical opinions expressed. The requested opinion must include a discussion of the medical opinions from Dr. Bash and Dr. Butler (located in the third volume of the claims file and dated February 2001 and May 2002). The nephrologist must not limit his or her opinion to a simple rejection or acceptance of the opinions expressed by Drs. Bash and Butler, but must also address the rationale for these opinions, compare and contrast any difference of opinions with Drs. Bash and Butler, and identify the evidence used in support of his or her own opinions. The nephrologist 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 secondary to his service connected renal colic. This should include but is not limited to the August 1997 and July 2005 opinions of the Veteran's VA physicians. Again, if the nephrologist's opinion differs from these findings, the specific reasons and bases for rejecting these opinions should be provided. 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. 2. Readjudicate the claim for service connection. If the benefits sought on appeal are not fully granted, issue a supplemental statement of the case (SSOC) before returning the case to the Board, if otherwise in order. The appellant 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. 2010). _________________________________________________ Mary Gallagher 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) (2010).