Citation Nr: 1220122 Decision Date: 06/07/12 Archive Date: 06/20/12 DOCKET NO. 09-03 741 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran (Appellant) ATTORNEY FOR THE BOARD T. Sherrard, Associate Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from January 1943 to December 1945. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a July 2007 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a January 2011 Travel Board hearing before a Veterans Law Judge who is no longer employed by the Board at the RO. A transcript is associated with the claims folder. A letter was sent to the Veteran in April 2012 asking whether he desired a new hearing before a different Board member, and he responded that he did not wish to appear at a hearing and wanted his case to be considered on the evidence of record. This case has been before the Board on two prior occasions, and the Board issued a remand for further development most recently in December 2010. As discussed below, the development requested by the Board has not yet been completed and further development is necessary. The RO granted service connection for posttraumatic stress disorder (PTSD) in a November 2011 rating decision. In May 2012, the Board received a statement from the Veteran in which he disagreed with the initial PTSD evaluation assigned. The Board does not have jurisdiction over the initial PTSD rating, and the issue is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 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, D.C. REMAND The Veteran in this case contends that his hypertension was caused or aggravated by his service-connected PTSD. As mentioned above, in December 2010, the Board remanded the hypertension claim, along with a claim of entitlement to service connection for PTSD, with several directives for further development. Specifically, the Board remanded the PTSD claim for a VA examination, and stipulated that if the PTSD claim was granted, a second VA examination should be conducted to determine whether the Veteran's hypertension was causally related to active service, or causally related to or aggravated by his PTSD. Following this Board's remand, a VA psychiatric examination was conducted in March 2011 and the RO granted service connection for PTSD; then, in light of the grant of service connection for PTSD, a VA examination was conducted with regard to the hypertension claim in January 2012. The VA examiner addressed the question of whether the Veteran's hypertension was caused by or "proximately due to" either active service or to his PTSD. However, the VA examiner did not address the question of whether the Veteran's hypertension was aggravated by his PTSD. The United States Court of Appeals for Veterans Claims (Court) held, in Barr v. Nicholson, 21 Vet. App. 303, 311 (2007), that once VA undertakes the effort to provide an examination it must obtain a fully adequate one. The VA examiner did not provide an opinion as to whether the Veteran's hypertension was aggravated by his PTSD, as requested by the December 2010 Board remand. Therefore, the Board finds that the January 2012 VA examination report is inadequate, and that another VA medical opinion must be obtained before the claim can be decided on the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Court held that compliance by the Board or the RO with remand instructions is neither optional nor discretionary). 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) (2011). Expedited handling is requested.) 1. Request an addendum opinion from the same VA examiner who conducted the January 2012 VA hypertension examination or a suitable substitute to address the question of aggravation. The claims file should be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. If the examiner determines that a new examination is required, one must be conducted. The examiner shoulder offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran's hypertension has been aggravated (permanently worsened in severity) by the Veteran's PTSD. The examiner should provide an explanation for the opinion reached. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: The term "aggravated" in the above context refers to a permanent worsening of the pre-existing or underlying condition, as contrasted to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability. If the examiner opines that the Veteran's hypertension was aggravated (permanently worsened in severity) by his PTSD, the examiner should attempt to identify the baseline level of severity of the hypertension before the onset of aggravation. The examiner should provide an explanation for the opinion reached. If the opinion and/or supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should so specify in the report, and explain why any opinion could not be offered. In this regard, if the examiner concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the examiner should state whether the inability to provide an opinion is due to a need for further information (with such needed information identified) or because the limits of medical knowledge have been exhausted regarding the etiology of the Veteran's hypertension. 2. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination(s), as failure to do so may result in denial of the claim(s). See 38 C.F.R. § 3.655 (2011). 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. 2011). _________________________________________________ K. J. ALIBRANDO 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) (2011).