Citation Nr: 1305180 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 07-29 634 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and Spouse ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from June 1965 to April 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In July 2011, the Board reopened the claim of service connection for hypertension and remanded the matter to the RO via the Appeals Management Center (AMC) in Washington DC for additional development. The matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). A full discussion regarding the RO's compliance with the July 2011 Board Remand is included in the Remand section below. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Another remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claim of service connection for hypertension. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R.§ 3.159(c), (d) (2012). Pursuant to the July 2011 Board Remand, the Veteran was afforded a VA examination of the hypertension in November 2011. In this regard, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the medical opinion provided by the November 2011 VA examiner is inadequate. The VA examiner opined that the Veteran's hypertension is less likely as not incurred in or caused by active service. The proffered medical opinion was not accompanied by a sufficient explanation or medical basis. Instead, the examiner noted that she only had one document in the service treatment records with a recorded blood pressure reading - the Veteran's pre-enlistment history and physical examination which revealed a blood pressure of 140/86. The examiner also indicated that this reading demonstrated pre-hypertension/hypertension stage one; however, she did not address the significance, if any, of this finding and why it did not relate to his currently diagnosed hypertension. While the examiner explained that she only had one document in the Veteran's service treatment records, she did not discuss the Veteran's April 1967 separation examination which reflected a blood pressure reading of 132/74. Inadequate medical examinations include examinations that provide conclusions unsupported by a rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr, 21 Vet. App. at 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). In addition, as explicitly instructed in the July 2011 Remand, the November 2011 VA examiner did not discuss the relevance of reported symptoms of headache and dizziness in service, claimed treatment for high blood pressure in service at the 93rd Evac Hospital in Da Nang in August 1966, the Veteran's report of denial of employment in March 1968 because of hypertension, and a June 1968 physical examination report which shows elevated blood pressure 14 months after separation from active service. As the requested discussion and a detailed rationale for the medical opinion were not provided, substantial compliance with the July 2011 Board Remand has not been satisfied with respect to the claim for service connection for hypertension. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. For these reasons, the issue of service connection for hypertension claim must again be remanded for compliance with the July 2011 Board Remand, namely, an adequate medical opinion accompanied by a rationale as to the etiology of the hypertension. Accordingly, the case is REMANDED for the following action: 1. If possible, request that the medical professional who conducted the November 2011 VA examination review the claims file and provide an addendum medical opinion. The claims file should be made available to, and be reviewed by, the VA examiner. The VA examiner should note such review in the examination report (another examination of the Veteran is not required if the November 2011 VA examiner is available). The VA examiner should provide the following opinion: Is it at least as likely as not (50 percent probability or greater) that any current hypertension began during service or is otherwise etiologically linked to active service? In offering the opinion, specifically discuss the relevance of the following: reported symptoms of headache and dizziness in service, claimed treatment for high blood pressure in service at the 93rd Evac Hospital in Da Nang in August 1966, the Veteran's report of denial of employment in March 1968 because of hypertension, and a June 1968 physical examination report which shows elevated blood pressure merely 14 months after separation from active service. 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. A rationale should be given for all opinions and conclusions rendered. The opinions should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. If an opinion cannot be rendered without resorting to speculation, the examiner should state whether the inability to provide an opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the disorder. If the November 2011 examiner is not available, obtain the requested opinion from another medical professional. If the examiner determines that an additional examination of the Veteran is necessary to provide a reliable opinion as to causation, such examination should be scheduled; however, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The claims folder should be made available to and reviewed by the examiner. 2. After completion of the above and any additional development deemed necessary, the claim for service connection for hypertension should be readjudicated in light of all the evidence of record. If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. 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. 2012). _________________________________________________ J. Parker 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).