Citation Nr: 1309394 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 06-01 710 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to service connection for vitiligo. 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant (the Veteran) is represented by: Vietnam Veterans of America WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from February 1968 to January 1970. This appeal comes before the Board of Veterans' Appeals (Board) from September 2004, and December 2008 rating decisions of the RO in Waco, Texas. In August 2003, the Veteran testified before a Veterans Service Representative at the RO. In June 2006, the Veteran testified before a Decision Review Officer at the RO. A transcript of each hearing is of record. In a decision dated in June 2010, the Board declined to reopen the Veteran's claim of entitlement to service connection for vitiligo. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC). In an Order dated in December 2010, pursuant to a Joint Motion for Remand (JMR), the CAVC vacated the Board's June 2010 decision in pertinent part, and remanded that issue back to the Board for development consistent with the Joint Motion. In July 2011, the Board reopened service connection for vitiligo and remanded the issue for additional evidentiary development. The Board also remanded the issue of service connection for renal cell carcinoma, which was in appellate status at that time and which had also been the subject of the Joint Motion. Subsequently, the RO granted service connection for renal cell carcinoma, completely resolving the appeal as to that issue. Although not addressed in the Board's June 2010 decision and not a subject of the Joint Motion, the Board (in July 2011) remanded the issue of service connection for hypertension for clarification from the RO as to the status of that appeal. In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. 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 In the July 2011 remand, the Board instructed the RO to obtain an opinion by a VA clinician with regard to the issue of entitlement to service connection for vitiligo. The Board's instructions were to address: * Whether it is at least as likely as not that the Veteran's vitiligo was caused by his active service, including but not limited to exposure to any chemicals during active service, including but not limited to Agent Orange, or * Whether it is at least as likely as not that the Veteran's vitiligo was caused by his PTSD. The VA clinician was asked to address in his or her rationale the significance of articles, found in the claims file, entitled, "Analysis of the Cause of Chemical Induced Contact/Occupational Vitiligo" and "Stress Proteins in Autoimmune Depigmentation." An opinion was obtained in October 2011; however, the VA clinician noted: "[r]eviewed claims file but [a]rticle on vitiligo referenced in 2507 not found. Referenced articles for review must be clearly marked." Upon review of the claims file, the Board notes that the article in question was and is clearly flagged in Volume 2. On the examination form, the VA clinician checked the box indicating "[t]he claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition." The stated rationale was that vitiligo is an idiopathic condition. Inheritance is estimated at 20 to 30 percent. It is felt to be an autoimmune disorder and is sometimes seen with other autoimmune diseases. According to the VA clinician, linking vitiligo to possible chemical exposure or PTSD is pure speculation unsupported by literature. Thus, the rationale that the linkage is unsupported by literature conflicts with the literature cited by the Board in its remand, but which the VA clinician did not review. This would clearly be the basis for a second JMR. Moreover, the clinician did not address direct service connection to include Agent Orange exposure, but only provided an opinion as to secondary service connection. The Board's remand instruction was to cover direct and secondary service connection, including Agent Orange exposure. The clinician was also asked to address whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's vitiligo had been permanently worsened beyond its natural progression (aggravated) by his PTSD. The October 2011 opinion does not address aggravation. This would be another basis for a second JMR. The CAVC has held that AOJ compliance with a remand is not discretionary, and that if the AOJ fails to comply with the terms of a remand, another remand for corrective action is required. Stegall v. West, 11 Vet. App. 268 (1998). While an examination and opinion for hypertension was not part of the remand request, the RO obtained an opinion anyway. The reviewing PA apparently did not conduct an examination, as the record only includes an opinion and rationale; however, that opinion notes that no claims file was available for review. As there was also no examination, this raises the question as to what information was available to the clinician to support the opinion. Moreover, the clinician opined that hypertension is less likely as not related to service, diabetes, or renal cell cancer; however, the stated rationale appears to contradict a portion of this finding. The clinician reasoned that there is evidence that hypertension occurred in the military (emphasis added). The opinion continues that there is no renal insufficiency or renal dysfunction, therefore hypertension without "renal dz" is not related to diabetes. "No medical evidence that indicates that his renal cancer caused or aggravated hypertension." As pointed out by the Veteran's representative, the finding that there is evidence that hypertension occurred in the military appears to support a relationship to service; however, this directly conflicts with the rest of the opinion. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). An inadequate examination frustrates judicial review. Hicks v. Brown, 8 Vet. App. 417, 422 (1995). If an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for rating purposes. 38 C.F.R. § 4.2 (2012). Accordingly, the case is REMANDED for the following action: 1. Obtain a supplemental opinion from the clinician who provided the October 2011 opinion on vitiligo. If the same clinician is not available, obtain an opinion from another medical professional. If the clinician determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. However, the Veteran should not be asked to report for an examination as a matter of course, if it is not found to be necessary by the clinician. The claims folder must be made available to and reviewed by the clinician. The clinician is asked to address the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's vitiligo was caused by his active service, including but not limited to (i) exposure to any chemicals during active service, including but not limited to Agent Orange, or (ii) by his PTSD. The examiner is asked to address, in his or her rationale, the significance of the articles, found in the claims file, entitled, "Analysis of the Cause of Chemical Induced Contact/Occupational Vitiligo" and "Stress Proteins in Autoimmune Depigmentation." (b) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's vitiligo had been permanently worsened beyond its natural progression (aggravated) by his PTSD. 2. Obtain a supplemental opinion from the clinician who provided the December 2012 opinion as to hypertension. If the same clinician is not available, obtain an opinion from another medical professional. If the clinician determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. However, the Veteran should not be asked to report for an examination as a matter of course, if it is not found to be necessary by the clinician. The claims folder must be made available to and reviewed by the clinician. The clinician is asked to address the following: (a) Please verify that the pertinent evidence from the claims file was reviewed. (b) Please clarify whether the intent was to state that there is evidence that hypertension occurred in the military, or whether the intent was to state that there is not evidence that hypertension occurred in the military. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence 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. All opinions are to be accompanied by a rationale consistent with the evidence of record. If the requested medical opinion cannot be given, the clinician should state the reason(s) why. 3. The RO should review the opinions to ensure that they comply with the remand instructions. 4. Readjudicate the remanded issues. If either benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. 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 examinations, as failure to do so may result in denial of the claims. See 38 C.F.R. § 3.655 (2012). These issues 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). _________________________________________________ JOHN J. CROWLEY 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).