Citation Nr: 1309397 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 07-09 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for hypertension, including as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from June1966 to June 1968 and received the Purple Heart Medal. This appeal to the Board of Veterans' Appeals (Board) is from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which granted the Veteran's claim for service connection for PTSD, but denied his claim for service connection for hypertension. In that decision the RO limited its consideration of this claim for hypertension to whether the condition was directly incurred in service, meaning incepted in service, or, alternatively, was presumptively incurred in service, meaning manifested within the one-year prescribed period following the Veteran's discharge from service, so by June 1969. In his August 2005 notice of disagreement (NOD), however, the Veteran indicated this claim for hypertension, instead, is predicated on the notion that it is secondary to his PTSD that was determined service connected. And the RO resultantly considered this additional basis of entitlement in the January 2007 statement of the case (SOC), but continued to deny the claim on all possible theories - direct, presumptive, and secondary service connection. The Veteran then completed the steps necessary to perfect his appeal of this claim to the Board by also filing a timely substantive appeal (VA Form 9) in March 2007. In March 2012, as support for his claim, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. During the hearing, the Veteran submitted additional evidence and waived his right to have the RO initially consider it. 38 C.F.R. §§ 20.800, 20.1304 (2012). During the pendency of this appeal, he relocated from California to Georgia, so he was at the RO in Atlanta when he testified during that videoconference hearing before the Board. The Atlanta RO also certified his appeal to the Board. In May 2012, the Board remanded the claim to the RO via the Appeals Management Center (AMC) for further development. Unfortunately, however, another remand is required. REMAND Pursuant to the prior May 2012 remand, the Veteran was provided a May 30, 2012 VA medical examination to determine the likelihood that his service-connected PTSD had caused or is aggravating his hypertension. See 38 C.F.R. § 3.310(a) and (b), permitting service connection on this secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. See, too, Allen v. Brown, 7 Vet. App. 439, 448 (1995). After examining the Veteran and reviewing the claims file, the VA examiner found that the Veteran's hypertension was less likely than not proximately due or the result of his service-connected PTSD. The examiner commented that the Veteran's hypertension did not begin until 37 years after service. The examiner also noted that the Veteran had a severe alcoholism problem, which aggravated his hypertension. Additionally, the examiner noted the Veteran's treating physician had stated that the Veteran's work stress had aggravated his hypertension. The examiner opined that there was no medical documentation of a relationship between the Veteran's PTSD and his hypertension. He found, however, that a mental health expert would be required to give an opinion as to the mental health aspects of this opinion. Subsequent to the provision of that medical opinion, the Veteran submitted additional medical evidence concerning his claim. In particular, in a July 2012 letter, a practitioner from the Doctor's Office LLC in Stockbridge, Georgia, indicated the Veteran had been receiving care there since 2006. The practitioner explained that the Veteran suffers from severe anxiety, which had caused problems, including hypertension, for which he is still taking medication. Given the May 2012 VA compensation examiner's finding that a mental health expert should provide an opinion concerning the potential relationship between the Veteran's PTSD and hypertension, along with this July 2012 letter since submitted suggesting a relationship between the Veteran's anxiety and his hypertension, so possibly implicating his PTSD if the anxiety is an associated symptom, additional medical comment is needed concerning this posited correlation. Accordingly, this claim is again REMANDED for the following additional development and consideration: 1. As the prior May 2012 VA compensation examiner recommended, have a VA mental health examiner, so either a psychiatrist or psychologist, provide a supplemental opinion regarding the likelihood (very likely, as likely as not, or unlikely) the Veteran's PTSD has caused OR is aggravating (meaning chronically or permanently exacerbating) the Veteran's hypertension. In providing this opinion on these determinative issues of causation and aggravation, this designated mental health examiner must review the claims file for the history of the PTSD and hypertension, including the medical opinions already of record (so the May 2012 VA examiner's opinion, the July 2012 letter from the Doctor's Office LLC, and the August 2012 opinion from Dr. P), as well as the other VA and private medical records pertaining to these conditions, the transcript of the Veteran's March 2012 hearing before the Board, and all other information or evidence deemed pertinent. In formulating this opinion the examiner must specifically consider the relationship, if any, between the Veteran's PTSD and anxiety and alcoholism. Disability resulting from alcohol or drug abuse, since it is willful misconduct, generally cannot be service connected as a matter of law. 38 U.S.C.A. § 105(a); 38 C.F.R. §§ 3.1(m) , 3.303(c)(3) and (d). VA's General Counsel has confirmed that direct service connection for disability that is a result of a claimant's abuse of alcohol or drugs is precluded for purposes of all VA benefits for a claim, as here, filed after October 31, 1990. See VAOPGCPREC 7-99 (June 9, 1999); VAOPGCPREC 2-98 (Feb. 10, 1998). There is a very limited exception to this general rule, however. In Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), the Federal Circuit Court held that compensation could not be awarded pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. § 105(a) either for a primary alcohol/drug abuse disability incurred during service or for any secondary disability that resulted from primary alcohol/drug abuse during service. Id., at 1376. However, the Federal Circuit Court further held that there can be service connection for compensation for an alcohol/drug abuse disability acquired as secondary to, or as a symptom of, a non-willful misconduct, service-connected disability. But in further clarifying this, the Federal Circuit Court explained that Veterans may only recover if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder." Id., at 1381. An award of compensation on such a basis would only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a Veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Id. More generally, the examiner must discuss the underlying rationale for the medical opinion provided, if necessary citing to specific evidence in the file. 2. Ensure the examiner's report is fully responsive to the remand instructions, including especially in terms of addressing both causation and aggravation. If not, take corrective action to avoid another remand. 38 C.F.R. § 4.2. See also Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with a remand directive, and the Board itself commits error as a matter of law in failing to ensure compliance). 3. Then readjudicate this claim for service connection for hypertension secondary to the PTSD in light of this and all other additional evidence. If this claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ Keith W. Allen 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).