Citation Nr: 1311452 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 09-04 070 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for hypertension, to include as due to exposure to herbicides and as secondary to service-connected coronary artery disease. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from November 1963 to September 1966. The appeal comes before the Board of Veterans' Appeals (Board) from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In a September 2012 decision, the Board reopened the previously finally denied claim and remanded the claim for additional development. The case now returns for further review. In the remand order below, the Board has also addressed the claim as inclusive of a secondary service connection theory of entitlement, as a theory presenting a reasonable possibility within the record. See Robinson v. Peake, 21 Vet. App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (stating that VA has a duty to develop and adjudicate a claim only as to those theories of entitlement raised by the Veteran or reasonably raised by the record, but does not have a duty to develop and adjudicate a claim as to every possible or conceivable theory of entitlement). 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 its September 2012 remand, the Board requested that records underlying a Social Security Administration (SSA) disability determination be obtained and associated with the claims file, in furtherance of the Veteran's appealed claim. While some administrative determination documents were obtained from SSA in October 2012, medical records on which this determination was based were not obtained. This substantial non-compliance with the Board remand instructions requires further remand so that those records can be obtained. Only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998). D'Aries v. Peake, 22 Vet. App. 97 (2008). In the September 2012 Remand, the Board required a VA examiner to address the likelihood that the Veteran's current hypertension was causally related to service, to include whether causally related to in-country presumed exposure to herbicide agents during service in Vietnam in the Vietnam Era. The examiner was asked to provide a rationale for any opinions provided. VA Disability Benefits Questionnaire (DBQ) examination for compensation purposes was obtained in October 2012. The examiner provided opinions that the Veteran's hypertension was not at least as likely as not related either to service or to herbicide agent exposure in service, but the examiner did not provide any rationale for these opinions except to note that the Veteran's hypertension was "essential" and that the Veteran had a family history of hypertension and diabetes. These noted clinical and historical facts, without further statement or explanation, cannot reasonably be considered a medical rationale. An adequate examination must support its conclusion with an analysis that can be weighed against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). A medical opinion that contains only data and conclusions cannot be accorded any weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, the examiner did not address the question of relevance of the diagnosis of labile hypertension presented within the September 1966 service separation examination report, as the Board had requested in its September 2012 remand. Additionally, the record reflects that service connection was established in this case for coronary artery disease status post coronary artery bypass graft times five in August 2000. The evidentiary record thus reasonably raises the question whether the Veteran's hypertension is secondary to his coronary artery disease. Secondary service connection may be granted where the evidence shows that a chronic disability has been caused or aggravated by an already service-connected disability. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran updated VCAA notice, to inform him of the evidence necessary to substantiate his claim for service connection for hypertension on both direct and secondary bases. Also afford him the opportunity to submit additional evidence or argument in furtherance of his claim. 2. The RO should also obtain and associate with the claims file any Social Security disability determination(s) and the medical records underlying the determination(s). The records obtained from SSA in October 2012 were not inclusive of medical records underlying any disability determination. 3. The claims file should be returned to the VA examiner who conducted the October 2012 VA examination. That examiner should be asked to answer the following questions, with a complete rationale supported by review of the record inclusive of the findings upon that October 2012 examination, as well as past examination and treatment records, and the Veteran's own history to the extent the examiner finds that history consistent with the medical findings: a. The examiner is advised that the current addendum opinions are required primarily because insufficient rationale, or explanation, was provided in support of the opinions contained within the October 2012 examination report. Additional questions are also here posed. b. Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension developed in service or is otherwise causally related to service? The examiner should consider all relevant evidence and should address the labile hypertension diagnosed upon service separation examination in 1966. c. Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was present to a disabling degree within the first year following the Veteran's separation from service in September 1966? The examiner should consider all relevant evidence and should address the labile hypertension diagnosed upon service separation examination in 1966. d. Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is causally related to herbicide exposure in Vietnam in service? e. Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was caused or aggravated (permanently increased in severity) by the Veteran's coronary artery disease? f. A rationale should be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report. If the examiner cannot answer any question posed without resorting to unsupported speculation, the examiner must provide a complete explanation why this is so. 4. If the October 2012 VA examiner does not provide a satisfactory addendum report with the opinions requested above and satisfactory rationale for those opinions, then the Veteran should be afforded a new VA examination for compensation purposes addressing these questions. 5. Thereafter, readjudicate the remanded service connection claim de novo. If any benefit sought by the remanded claim is not granted to the Veteran's satisfaction, provide him and his representative with a Supplemental Statement of the Case (SSOC) and an appropriate opportunity to respond. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).