Citation Nr: 1308120 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 04-11 323 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from March 1966 to March 1968. The Veteran was awarded the Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In June 2009, the Veteran testified in a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claim. 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 & Supp. 2011);38 C.F.R. § 3.159(c), (d) (2012). Pursuant to a June 2012 Board Remand, the Veteran underwent a VA examination in June 2012. The examiner indicated her review of the claims file and the Veteran's relevant medical history. She diagnosed the Veteran with hypertension. As to the etiology of the hypertension, the VA examiner opined that it is less likely than not that the diagnosed hypertension is proximately due to or the result of the Veteran's service-connected diabetes mellitus. She explained that, because the hypertension was diagnosed and treated prior to the diagnosis of diabetes mellitus, the hypertension is at least as likely as not a poorly controlled hypertension and less likely than not that it is secondary to diabetes mellitus. The Board finds this medical opinion inadequate because the VA examiner did not address the question of aggravation that the Board asked in the June 2012 Board Remand instructions, namely, whether the Veteran's hypertension increased in severity due to his service-connected diabetes mellitus. The Board finds that this appeal must be remanded to obtain an adequate medical opinion that complies with the directives of the June 2012 Board Remand. A Board remand confers upon an appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Additionally, where VA provides the Veteran an examination in a service connection claim the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An adequate medical opinion addresses the appropriate theories of entitlement and provides a supporting rationale for any medical opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 123-25 (2007). Accordingly, the case is REMANDED for the following action: 1. If possible, request that the medical professional who conducted the June 2012 VA examination review the claims file and provide an addendum medical opinion. The relevant documents in the claims file should be made available to, and be reviewed by, the examiner. The examiner should note such review in the examination report (another examination of the Veteran is not required). If the June 2012 examiner is not available, obtain the requested opinion from another, appropriate medical professional. If the examiner determines that an additional examination of the Veteran is necessary to provide a reliable opinion as to aggravation, 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 relevant documents in the claims file should be made available to, and be reviewed by, the examiner. The examiner should offer the following opinion: Is it as likely as not (50 percent probability or greater) that the hypertension is aggravated (permanently worsened in severity) by the service-connected diabetes mellitus? In answering this question, the examiner should identify the baseline level of severity of the current hypertension, prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. If some of the increase in severity of the current hypertension is due to natural progress, the examiner should identify the degree of increase in severity due to natural progression. 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 clear rationale should be given for all opinions and conclusions rendered. The opinion 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. 2. When the development requested has been completed, and the RO has ensured compliance with the requested actions, this 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 be 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 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).