Citation Nr: 1313414 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 08-35 677 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to a service-connected disability. 2. Entitlement to service connection for a depressive disorder. REPRESENTATION Veteran represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD S. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to April 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office located in Denver, Colorado (RO). The issue of entitlement to rating in excess of 50 percent for posttraumatic stress disorder (PTSD) has been raised by the record. Specifically, following the May 2011 rating decision, wherein service-connected for PTSD was granted, the Veteran did not perfect an appeal and, thus, that decision is final. Pursuant to the Veteran's claim of entitlement to service connection for a depressive disorder, the Veteran was provided a VA examination in January 2013. As a result of this examination, the examiner opined that the Veteran's PTSD appeared to be worse. As the issue of entitlement to an increased rating for PTSD has not been adjudicated by the RO, the Board does not have jurisdiction over it, and the claim is referred to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if further action is required. REMAND In February 2012, the Board remanded the Veteran's above-captioned claims for further development. Specifically, the Board directed the RO to (1) provide clarification as to whether the May 2011 grant of service connection for PTSD constituted a full grant of the benefits sought on appeal with respect to a depressive disorder; (2) obtain clarification from the Veteran as to whether he wished to continue pursuing a claim of entitlement to service connection for hypertension; (3) obtain the Veteran's outpatient treatment records from the VA Medical Center in Albuquerque, New Mexico, dated in and after December 2010; and, depending the Veteran's response to the second directive, (4) afford the Veteran a VA examination in order to obtain an opinion as to whether his hypertension was due to, caused by, or aggravated by a service-connected disability. Thereafter, the RO was to readjudicate the Veteran's claims on appeal and, if any benefit remained denied, issue a supplemental statement of the case. After the Veteran and his representative were provided an opportunity to response thereto, the RO was to remit the Veteran's claims to the Board for further appellate review. In March 2012, the RO sent the Veteran a letter requesting that he clarify whether he wished to continue his appeal with respect to the issue of entitlement to service connection for hypertension. In May 2012, the Veteran responded in the affirmative. The RO then associated with the claims file a copy of the May 2011 rating decision wherein service connection for PTSD was granted. The RO highlighted various aspects of this rating decision in an apparent attempt to demonstrate that only the issue of entitlement to service connection for PTSD was resolved therein and that the issue of entitlement to service connection for a depressive disorder was a separate issue. The RO also obtained the Veteran's outpatient treatment records from the VA Medical Center in Albuquerque, New Mexico. These records were associated with the Veteran's Virtual VA claims file. Based on the above, the Board finds that the RO substantially complied with directives 1, 2, and 3 from the February 2012 remand. As such, no further development is required with respect to associated directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance). However, the Board finds that a remand is required for additional development with respect to both claims. A. Hypertension Pursuant to the February 2012 Board remand, the Veteran was provided a VA examination in August 2012. Ultimately, the examiner opined as follows: The claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Tinnitus, cataracts and PTSD are not recognized as causes of [hypertension]. Myocardial infarctions do not cause [hypertension]; it is the other way around. For VARO rating purposes, for [diabetes mellitus, type II] to cause [hypertension] there must be diabetic nephropathy; there is no evidence of this by lab review. The 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. Tinnitus, cataracts, myocardial infarctions and PTSD are not recognized as exacerbators of [hypertension]. Again, as there is no diabetic nephropathy, [diabetes mellitus, type II,] is not considered to affect his blood pressure. At the time of the May 2012 VA examination, service connection was in effect for PTSD; bilateral posterior cataracts, post-operative; diabetes mellitus, type II, with associated peripheral neuropathy of hands and feet; coronary artery disease with myocardial infarctions; and tinnitus. As discussed above, in May 2012 opinion, the VA examiner opined that myocardial infarctions do not cause hypertension and are not recognized as exacerbators of hypertension. However, the examiner did not discuss if the Veteran's hypertension was caused by, due to, or aggravated by his service-connected coronary artery disease, of which myocardial infarctions is an aspect. As such, the Board finds that the May 2012 VA examination is not adequate for purposes of determining entitlement to service connection for hypertension. Consequently, a remand in order to obtain a supplemental opinion or to afford the Veteran another VA examination is required. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that, "Once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided."). Further, by not ensuring that the May 2012 VA examination was adequate, the Board finds that the RO did not substantially comply with this aspect of the February 2012 remand. Thus, a remand is required in order for the RO to undertake corrective actions. See Stegall, 11 Vet. App. at 271. B. Depression The RO afforded the Veteran a VA examination in January 2013 with respect to his claim of entitlement to service connection for depression. As a result of this examination, the examiner opined as follows: The [V]eteran appears to have some symptoms of depression, but his symptomatology does not meet full diagnostic criteria for having a depressive disorder according to the [Diagnostic and Statistical Manual of Mental Disorders (4th ed.)]. In rendering this opinion, the examiner indicated that the Veteran's claims file was reviewed. However, as discussed above, the RO requested and obtained the Veteran's VA outpatient treatment reports from the VA Medical Center in Albuquerque, New Mexico, dated in and after December 2010. The RO then associated the newly obtained records with the Veteran's Virtual VA claims file. The Board reviewed these records and discovered that the Veteran had been provided diagnoses of Major Depressive Disorder in September and October 2011, in addition to diagnoses of PTSD. The January 2013 VA examiner did not indicate that the Veteran's Virtual VA claims file was made available for review and, further, did not discuss/consider the newly obtained VA treatment records in rendering the January 2013 opinion. As such, the Board finds that remand is required in order to obtain a supplemental opinion or to afford the Veteran another VA examination. See Barr, 21 Vet. App. at 311. In rendering the supplemental opinion, the examiner is advised that the regulatory requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As such, the January 2013 VA examiner must ascertain whether the criteria for a depressive disorder were satisfied at any point during the pendency of this appeal. The examiner must provide an opinion as to whether any such depressive disorder was etiologically related to the Veteran's military service or a service-connected disability, even if that depressive disorder subsequently resolved. Accordingly, the case is REMANDED for the following action: 1. The RO must make available the Veteran's claims file to the VA examiner who administered the May 2012 VA examination, and ask that another supplemental opinion be provided. After reviewing the claims file, including the Veteran's Virtual VA claims file, the examiner must state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's currently diagnosed hypertension was caused by, due to, or aggravated by any service-connected disability, with a particular emphasis on coronary artery disease. The examiner must indicate that the Veteran's Virtual VA claims file was reviewed. The examiner must fully explain the rendered opinion, including a thorough underlying rationale for any conclusion reached. 2. The RO must make available the Veteran's claims file to the VA examiner who administered the January 2013 VA examination, and ask that a supplemental opinion be provided. After reviewing the claims file, including the Veteran's Virtual VA claims file, the examiner must ascertain whether the Veteran has a current diagnosis of a depressive disorder, including Major Depressive Disorder, and/or whether a depressive disorder was present at any point during the pendency of this appeal. If the examiner determined that a depressive disorder is currently present, or was present during the pendency of this appeal, the examiner must then state whether it is at least as likely as not (50 percent probability or greater) that any such depressive disorder was caused by or otherwise related to his military service, or was caused by, due to, or aggravated by a service-connected disability. In providing these opinions, examiner must specifically address and comment upon the September and October 2011 diagnoses of Major Depressive Disorder. The examiner must fully explain the rendered opinion, including a thorough underlying rationale for any conclusion reached. 3. Thereafter, the RO should re-adjudicate the appeal, to include all of the evidence submitted or obtained since the April 2010 supplemental statement of the case. If the benefits sought on appeal remain denied, the RO should issue a supplemental statement of the case and provide the Veteran and his representative an appropriate period of time in which to respond. Then, the appeal should be returned to the Board for further appellate review. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).