Citation Nr: 1312859 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 08-13 211A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for hypertension, to include as secondary to the service-connected diabetes mellitus, type II. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to October 1969. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Louis, Missouri. In December 2011, the Board denied service connection for hypertension, to include as secondary to the service-connected diabetes mellitus, type II. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In August 2012, the Court granted a Joint Motion for Remand (JMR) by the Veteran and VA General Counsel, which was incorporated by reference, to vacate the Board's decision as to that issue and to remand the claim for reajudication in accordance with the JMR. In December 2012, the Board remanded the Veteran's hypertension claim to issue additional notice to the Veteran, obtain outstanding medical records, and afford him a VA examination with medical opinions. The RO issued a supplemental statement of the case in March 2013, and the appeal is once again before the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. In the December 2012 Remand, the Board asked that the Veteran be accorded an appropriate VA examination, where the examiner opines as to whether his hypertension had its clinical onset in service or is otherwise related to service. In answering this question, the examiner was asked to note that the Veteran's service treatment records only provide three blood pressure readings: 138/88 on enlistment in October 1965; 132/86 in January 1966; and 160/88 at his discharge examination in September 1969 and was instructed to address the Veteran's assertion that he was initially diagnosed with hypertension in 1970. Although the January 2013 VA examiner addressed the Veteran's assertions that he was diagnosed with hypertension in 1970, she did not specifically address the Veteran's in-service blood pressure readings. Rather, the examiner made a generalized statement that the Veteran's "blood pressures are normotensive in service." The VA examiner was also instructed to provide an opinion as to whether the Veteran's hypertension was caused or aggravated by his service-connected diabetes mellitus, type II. Although the January 2013 VA examiner addressed whether the Veteran's service-connected diabetes mellitus, type II, aggravated the Veteran's hypertension, an opinion regarding the direct relationship between the Veteran's service-connected diabetes mellitus, type II and hypertension was not provided. The Board is obligated by law to ensure that the RO complies with its directives. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). On remand, therefore, the Veteran should be accorded a pertinent VA addendum opinion. Accordingly, the case is REMANDED for the following actions: 1. Return the Veteran's claims file to the examiner who conducted the January 2013 VA evaluation-or to another qualified medical professional if the original examiner is unavailable. If the examiner determines that an examination is necessary, one should be scheduled. The claims folder must be made available to the examiner for review of the case, and a notation to the effect that this record review took place should be included in the report. (a) The examiner is asked to opine as to whether it is at least as likely as not (e.g., a 50 percent probability or greater) that the Veteran's hypertension had its clinical onset in service or is otherwise related to service. In answering this question, the examiner should address the Veteran's STRs, which provide the following blood pressure readings: 138/88 on enlistment in October 1965; 132/86 in January 1966; and 160/88 at the discharge examination in September 1969. The examiner should also address the Veteran's assertion that he was initially diagnosed with hypertension in 1970. (b) The examiner should also opine as to whether it is at least as likely as not (e.g., a 50 percent probability or greater) that the Veteran's hypertension was caused by his service-connected diabetes mellitus, type II. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. Review the opinions to ensure that they are in compliance with the directives of this Remand. If the opinions are deficient in any manner, the RO must implement corrective procedures. 3. Upon completion of the above, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and provided an opportunity to respond. Then, the case should be returned to the Board for further appellate consideration, as appropriate. No action is required of the Veteran until he is notified by the RO; however, he is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). He has the right to submit additional evidence and argument on the matter that 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 remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).