Citation Nr: 1310941 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 04-17 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hypertension, to includes as secondary to a service-connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to January 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This case was previously before the Board in June 2007, March 2010, January 2012, and August 2012. In June 2007, the Board promulgated a decision which denied service connection for hypertension, among other things. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). By a February 2009 Order, the Court, pursuant to a joint motion, vacated the Board's decision and remanded the case for compliance with the instructions of the joint motion. In March 2010, the Board remanded the case for further development to include a VA medical examination to address the etiology of the Veteran's hypertension. Such an examination was accorded to the Veteran in May 2010 with a June 2010 addendum. In January and August 2012, the Board remanded the case again for compliance with the March 2010 remand. The case has been returned to the Board for further appellate review. The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. In a January 2010 statement, the Veteran asserted that he was entitled to service connection for tinnitus, hearing loss, erectile dysfunction, peripheral neuropathy of the lower extremities, as well as entitlement to a total rating based upon individual unemployability (TDIU) and permanent and total disability. All the issues were adjudicated by way of an April 2009 rating decision with the exception of the request for TDIU and a permanent and total disability rating. As the Board does not have jurisdiction over this issue it is referred to the AOJ for appropriate action. 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 August 2012 remand, the Board noted that instructions set forth by the March 2010 remand had not been completed. Additional development, to include a VA examination, was directed. Various specific questions were directed to the examiner, to include solicitation of an opinion regarding whether hypertension was aggravated by the Veteran's diabetes mellitus, ischemic heart disease, posttraumatic stress disorder (PTSD), or other service-connected disability. On examination in October 2012, the examiner, a physician's assistant opined that hypertension was not caused or aggravated by ischemic heart disease, diabetes mellitus, or PTSD. With regard to ischemic heart disease, he reasoned that hypertension was idiopathic. He noted that diabetes did not cause or aggravate hypertension, as diabetes had preceded hypertension and there was no renal involvement. Regarding PTSD, the examiner stated that there was no medical literature indicating that PTSD could cause or aggravate hypertension. As a general matter, the Board observes that the October 2012 examination report is not responsive to the specific questions posed by the Board's August 2012 remand. Because the examiner did not respond completely to the questions posed in the August 2012 remand, the examination is inadequate for the purpose of adjudicating the Veteran's claim for special monthly pension. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that, once VA has provided a claimant with an examination, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.) The U.S. Court of Appeals for Veterans Claims (Court) has stated that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. Where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Stegall v. West, 11 Vet. App. 268 (1998). In a March 2013 brief, the Veteran's representative pointed out that the examiner had failed to provide adequate rationale for his opinion regarding a relationship between hypertension and PTSD. He pointed to VA's own medical literature. See March 2013 Appellate Brief Presentation. The representative also listed the Veteran's other service-connected disabilities, which include bilateral hearing loss disability, tinnitus, peripheral neuropathy of the lower extremities, and bilateral shoulder disabilities, in response to a September 2012 duty to assist letter sent to the Veteran requesting evidence that hypertension was related to those disabilities. As such, the Board's questions set forth below will also address these disabilities and their possible relationship to the Veteran's claimed hypertension. In light of the above discussion, the Board has determined that additional development is necessary. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination by a physician with the requisite expertise to address the etiology of the Veteran's hypertension. The claims folder should be made available to the examiner for review before the examination; the examiner must indicate that the claims folder was reviewed. The examiner is informed of the following facts (all records have been tabbed on the right side of Volumes 1 and 2 of the claims file): * The Veteran is service connected for type 2 diabetes mellitus, ischemic heart disease, and posttraumatic stress disorder (PTSD). He has been diagnosed with hypertension. He has alleged that he developed hypertension as a result of type 2 diabetes mellitus, heart disease, and/or PTSD. He has more recently alleged that hypertension might also be related to his other service-connected disabilities which include bilateral shoulder disabilities, bilateral hearing loss disability, tinnitus, and peripheral neuropathy of the bilateral lower extremities. * The Board seeks assistance with determining whether hypertension is due to a service-connected disability (to include a combination of the service-connected disabilities). * A July 1997 VA treatment record shows the Veteran's blood pressure was reported as 154/98. See treatment record in Volume 1 tabbed in yellow with the applicable month and year. * An October 1997 VA treatment record shows the Veteran's blood pressure was reported as 155/91. When addressing the past medical history, the examiner noted there was no hypertension and no diabetes mellitus. See treatment record in Volume 1 tabbed in yellow with the applicable month and year. * A June 1998 private medical record from Health Central shows the Veteran's glucose was reported as 184 with a reference range of 71 - 113. See record in Volume 2 tabbed in green with the applicable month and year. * The Veteran was seen at Health Central in June 1999 with complaints of chest pain. An admission record, dated June 2, 1999, shows that the Veteran reported a history of "borderline hypertension and hyperlipidemia." The examiner noted there was, "No history of diabetes mellitus or rheumatic fever." However, the "echocardiography" done on June 3, 1999, shows the examiner wrote the Veteran had "a history of diabetes and risk factors for coronary artery disease." Both of these records are in Volume 2 and tabbed in green with the applicable month and year. * The blood pressure readings in these hospitalization records are 148/97, 122/78, and 218/98 (during a thallium stress test). The Veteran was diagnosed with hypertension. * A September 2002 private medical record shows a blood pressure reading of 140/72. The Board notes there is another blood pressure reading shown in this record, but the diastolic pressure is illegible. See record in Volume 1 tabbed in green with the applicable month and year. * Private medical records from January 2002, September 2002, and October 2002 from Dr. Kim show blood pressure readings of 120/80, 130/90, 130/90 (two reports on different days show this same blood pressure) and 170/100 (peak pressure during treadmill test). See records in Volume 1 tabbed in green with the applicable months and year. * A November 2002 VA examination report shows that the Veteran reported he had been diagnosed with diabetes mellitus in August 2002 (but noted his blood sugar had been borderline prior to 2000). This record shows the Veteran was taking 10 milligrams of Monopril at that time. His blood pressure was 135/84. See VA treatment record in Volume 1 tabbed in yellow with the applicable month and year. * An August 2003 VA examination report shows the Veteran reported he was diagnosed with borderline diabetes in 1977 and was given a diagnosis of diabetes in November 1999. He also reported he was diagnosed with hypertension in November 1999. His blood pressure readings were 146/90 (sitting) and 150/100 (lying down). See VA treatment record in Volume 1 tabbed in yellow with the applicable month and year. * A September 2003 letter from Dr. Christine Edwards shows she found that the Veteran's hypertension was secondary to diabetes mellitus. See letter in Volume 1 tabbed in green with the applicable month and year. * A March 2009 VA examination report shows the Veteran reported he was diagnosed with hypertension in 1997. His blood pressure readings were 138/78, 140/76, and 138/80. This examiner determined that hypertension was not a complication of diabetes mellitus because it was "diagnosed concurrently with [diabetes mellitus] and no evidence of renal insufficiency." The examiner added, "The [high blood pressure] is idiopathic and related to morbid obesity." See examination report in Volume 2 tabbed in yellow with the applicable month and year. * A March 2010 VA examination report shows the Veteran reported he had been told his blood pressure was elevated in 1990 when hospitalized for kidney stones and was formally diagnosed with hypertension in 1998. The Veteran's blood pressure at the time of the VA examination was 138/80. The examiner's medical opinion was unclear and VA obtained an addendum in June 2010. There, the examiner wrote that diabetes can affect hypertension by making hypertension more difficult to control. "The baseline manifestation of hypertension is unable to be determined without resorting to speculation." See examination report and addendum in Volume 2 tabbed in yellow with the applicable months and year. * A November 2010 VA examination report shows the Veteran's blood pressure was 150/90. See examination report in Volume 2 tabbed in yellow with the applicable month and year. * The January 2011 "Report of Consultation and Examination" was written by a chiropractor. There, he wrote the Veteran's blood pressure was 200/120 on that day. See report in Volume 2 tabbed in green with the applicable month and year. * A February 2012 VA examination report shows the examiner reported blood pressure readings of 145/90 (February 2012), 138/72 (November 2011), and 145/80 (June 2010). The examiner wrote it would be difficult to determine whether the Veteran's hypertension had been aggravated by his service-connected disabilities of diabetes, heart disease, and other service-connected disabilities. See examination report in Volume 2 tabbed in yellow with the applicable month and year. * VA obtained an addendum to the opinion in May 2012, and the examiner wrote, "Patient was noted to have essential hypertension and therefore it is not a result of diabetes, heart disease, or PTSD. This patient has known elevated blood pressure readings since 1990 but started on antihypertensives until 1998." See examination report in Volume 2 tabbed in yellow with the applicable month and year. * The problem with the above medical opinions is there is a lack of an explanation as to whether hypertension is aggravated beyond the natural progress of the disease process by the Veteran's service-connected disabilities of diabetes mellitus, ischemic heart disease, and/or PTSD, to include a combination of these disabilities. Following evaluation of the Veteran, the examiner must express an opinion on the following questions: (i) Whether it is at least as likely as not (50 percent probability or higher) that hypertension is due to or caused by the service-connected type 2 diabetes mellitus, PTSD, heart disease, and/or other service-connected disabilities (e.g., bilateral shoulder disabilities, peripheral neuropathy of the lower extremities, tinnitus and hearing loss) to include a combination of the disabilities. Upon what facts and medical principles do you base this opinion? Regarding the relationship between hypertension and PTSD, the examiner's attention is directed to the representative's assertion that the examiner failed to provide adequate rationale for his opinion regarding a relationship between hypertension and PTSD. The representative pointed to VA's own medical literature. See March 2013 Appellate Brief Presentation. (ii) If the answer to (i) is negative, is it at least as likely as not that hypertension is aggravated (i.e., increased in severity) beyond its natural progression by the diabetes mellitus, PTSD, heart disease and/or other service-connected disabilities, to include a combination of the disabilities. Upon what facts and medical principles do you base this opinion? (iii) Examiners have described the Veteran's hypertension as being "essential" or "idiopathic." Can you explain why the Veteran's hypertension is deemed to be essential or idiopathic? (iv) Please provide an opinion based on the entirety of the record as to when the hypertension, diabetes mellitus, and ischemic heart disease, coronary artery disease first manifested. (v) Please provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that hypertension began in or is related to active service. A complete rationale for any opinion expressed must be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation. If the examiner determines that an opinion cannot be provided without resort to speculation, the examiner is asked to explain the inability to provide an opinion, identifying precisely what facts could not be determined, such as the limits of medical knowledge have been exhausted or whether additional information could be obtained that would lead to a conclusive opinion. 2. After the requested examination has been completed, the examination report should be reviewed to ensure that each is in complete compliance with the directives of this remand. The examination report should be returned to the examiner if deficient in any manner. A medical opinion that does not explain why it cannot be made without resorting to speculation is inadequate. 3. Thereafter, ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the claims for service connection for hypertension, to include as being secondary to a service-connected disability. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ S. S. TOTH 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).