Citation Nr: 1301099 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 08-21 835 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for hypertension, claimed as CAUSED BY ("secondary to") OR AGGRAVATED BY service-connected post-traumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from June 1959 to October 1982. This case was previously before the Board of Veterans' Appeals (Board) in May 2010 and July 2012. Each time, it was remanded for further development of the record. Following the requested development, the VA Appeals Management Center (AMC) in Washington, D.C. confirmed and continued the denial of entitlement to service connection for hypertension. Thereafter, the case was returned to the Board for further appellate action. THE RO/AMC HAS NOT COMPLIED WITH THE BOARD'S REMAND DIRECTIVES, AND THE APPEAL IS AGAIN REMANDED to the RO/AMC. Stegall v. West, 11 Vet. App. 268, 271 (1998). VA will notify the Veteran if further action is required. REMAND The Veteran contends that he has hypertension, primarily as a result of his service-connected PTSD. In such a claim, the law requires that VA also adjudicate whether the Veteran's service-connected PTSD aggravated (or, worsened) his hypertension. In September 2008, the Veteran submitted a medical opinion authored by his treating physician, Edwin W. Hoeper, M.D., who reported that PTSD "contributed to his hypertension." In order to respond to these inquiries, the LAW REQUIRES AN INFORMED AND RESPONSIVE MEDICAL OPINION AS TO BOTH THE QUESTION OF CAUSE AND AGGRAVATION. Service connection may be granted when the evidence shows that a particular disability is proximately due to or the result of a disability for which service connection has already been established. 38 C.F.R. § 3.310(a). Any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b). In its May 2010 remand, the Board that in February 2009 the Veteran had been examined by VA to determine the nature and etiology of any hypertension found to be present. The VA examiner diagnosed essential hypertension, and provided an opinion that it was "less likely as not that the Veteran's hypertension was caused by or a result of his PTSD." As a rationale he stated that the Vietnam Era Twins Study (VETS) "did not support the assertion that PTSD has any significant role in causing or aggravating hypertension." While the VA examiner stated that the VETS did not support the assertion that PTSD had caused the Veteran's hypertension, he did not provided a medical opinion as to whether THIS VETERAN'S PTSD had aggravated his hypertension. Also, the VA examiner had failed to address a September 2008 opinion by the Veteran's private treating psychiatrist, (Dr. Hoeper) stating that the PTSD had contributed to hypertension. The Board directed that the RO/AMC schedule VA hypertension examination by a physician. All indicated tests and studies were to be performed. The physician was requested to provide an opinion whether the Veteran's hypertension had been caused or aggravated by his PTSD. THE EXAMINER WAS ALSO TO PROVIDE AN EXPLANATION FOR ANY OPINION PROVIDED, including a discussion of any alternative etiology. An abstract of the VETS referred to by the VA examiner in the February 2009 examination was to be attached to the addendum. While the Veteran was examined in February 2011 by VA, in its July 2012 remand, the Board noted that the February 2011 VA examination had been conducted by a physician's assistant, rather than a physician. Moreover, the Board found that the examination did not provide an opinion as to the etiology of the Veteran's hypertension. While in an August 2011 addendum, a VA physician stated that it was less likely than not that the Veteran's hypertension had been due to or aggravated by his service-connected PTSD, there was no indication that the doctor had ever examined the Veteran. The addendum was also not explained. The examiner only stated that the predominance of the medical literature did not support PTSD as a cause of or aggravation of hypertension. Furthermore, the VA examiner does not refer to any specific literature, including the VETS. In July 2012, the case was remanded by the Board to correct those deficiencies. In August 2012, a internet extract from the VETS was associated with the claims folder. That extract set forth a synopsis entitled Selected Vietnam Era Registry Research Studies, including Post-Traumatic Stress Disorder and Cardiovascular Disease. Later in August 2012, the Veteran was examined by VA to determine the nature and etiology of any hypertension found to be present. That examination was performed by the VA physician who had offered the August 2011 addendum opinion. The examiner again concluded that it was less likely than not that the Veteran's hypertension had been due to or aggravated by his service-connected PTSD. However, the VA examiner again simply repeated his summary conclusion that the medical literature did not support PTSD as a cause of or aggravation of hypertension. The VA examiner did not include a discussion of any alternative etiology. Similarly, he did not refer to or acknowledge any specific literature, including the VETS cited in the Board's July 2012 remand. As a matter of law, the Veteran has a right to compliance with the Board's remand orders. Stegall, above. In this case, however, the RO/AMC has failed to comply with the Board's instructions on two separate occasions. Accordingly, the record remains incomplete, and those failures must be remedied. Given the previously cited deficiencies, the Board will direct specific and detailed tasks that must be accomplished and the case is again REMANDED for the following actions: 1. Schedule the Veteran for an examination by a PHYSICIAN QUALIFIED TO RENDER OPINIONS REGARDING ANY LINKAGE BETWEEN CARDIOVASCULAR AND PSYCHIATRIC DISORDERS. The purpose is to determine the nature and etiology of any hypertension found to be present. All indicated tests and studies must be performed, and any indicated consultations must be scheduled. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. If hypertension is diagnosed, the examiner must identify and explain the elements supporting the diagnosis. The examiner must also render an opinion as to whether the Veteran's hypertension WAS CAUSED BY OR AGGRAVATED BY (I.E., WORSENED) service-connected PTSD. In so doing, the VA examiner must state how and why he or she reached the stated opinion WITH REGARD TO THIS SPECIFIC VETERAN. The VA examiner must include, but is not limited to, a discussion of the following: a) any alternative etiology; b) VETS; and c) the September 2008 opinion by the Veteran's private treating psychiatrist, Dr. Edwin W. Hoeper. THE EXAMINER IS ADVISED THAT THE COURTS HAVE IMPOSED A REQUIREMENT ON THE BOARD TO EVALUATE ANY MEDICAL OPINIONS BY EXAMINATIONS OF MULTIPLE FACTORS, INCLUDING BUT NOT LIMITED TO: WHETHER THE EXAMINER CONDUCTED A PERSONAL INTERVIEW OF THE VETERAN; WHETHER CLINICAL TESTING WAS CONDUCTED AND THE RESULTS; WHETHER A COMPREHENSIVE REVIEW OF THE CLAIMS FOLDER AND OTHER MEDICAL AND FACTUAL EVIDENCE WAS CONSIDERED, INCLUDING OTHER MEDICAL OPINIONS; THE CONCLUSIONS REACHED AND WHETHER THEY ARE BASED ON THE STATE OF MEDICAL KNOWLEDGE. THE EXAMINER IS ALSO ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT FOR LEGAL REVIEW. The Veteran is advised that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, the notice informing him of the date, time, and location of the examination must be associated with the claim folder. If that notice was returned by the Post Office as undeliverable, that fact must be noted in writing and also associated with the claims file. 2. When the actions requested in Section 1 have been completed, undertake any other indicated development. Then readjudicate the issue of entitlement to service connection for hypertension. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The agency tasked with accomplishing the directions set forth in the remand and the Veteran are advised that the Board is obligated by law to ensure compliance with its directives, as well as those of the appellate courts. It has been held that such compliance is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall. The Veteran need take no action unless he is notified to do so. However, he is advised that he has the right to submit any additional evidence and/or argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (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. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ VITO A. CLEMENTI 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) (2012).