Citation Nr: 1314760 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 09-19 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hypertension, to include as secondary to exposure to Agent Orange. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran had active service from March 1959 to June 1986. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran submitted a Notice of Disagreement (NOD) with this determination in August 2008, and perfected his appeal in June 2009. The Board notes that the appeal originally included the claim of service connection for a skin disorder, including actinic keratosis and basal cell carcinoma. The Appeals Management Center (AMC) granted service connection for these disabilities in a January 2013 rating decision. This decision constitutes a full grant of benefits. Therefore, the claims of service connection for actinic keratosis and basal cell carcinoma are no longer on appeal. In February 2011 and April 2012, the Board remanded the issue on appeal for further examination. Regrettably, as outlined below, further development is necessary before the Board can proceed on the issue of service connection on appeal. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claims. A review of the documents in such file reveals that there are additional VA treatment records related to the Veteran's claim on appeal. These records have been reviewed and considered by the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 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. Further development is warranted as certain actions requested in the April 2012 Board remand have not been performed in full. Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms). The April 2012 remand sought an opinion regarding whether the Veteran's hypertension was the result of or aggravated by his service-connected iliac crest deformities. This opinion was to be supported by a complete and thorough rationale. Pursuant to the Board's remand, the RO/AMC scheduled the Veteran for a VA examination to assess his hypertension in May 2012. The examiner ultimately relayed the same opinion that was rendered by the April 2011 VA examiner. After examining the Veteran, the VA examiner noted that the Veteran's essential hypertension was not caused by, a result of, or had its onset in the service, or was related to any in-service disease, event, or injury, including herbicide exposure. The examiner noted that there was no evidence of hypertension in the service, and started years after his military discharge. The examiner further stated that the literature review did not note essential hypertension related to in-service injuries or stress. Events like these can cause transient elevation of blood pressure, but not the diagnosis of essential hypertension. There was also no literature association between Agent Orange and the development of hypertension. Additionally, there was no evidence of aggravation since there was no relationship between these conditions and the development of essential hypertension. However, while the examiner stated that events could cause an elevation of blood pressure, when rendering her opinion she did not specifically state whether the Veteran's hypertension was aggravated (permanently worsened) by his service-connected iliac crest deformities as requested by the Board. Therefore, an addendum to the May 2012 VA examination medical opinion is necessary in order to address whether the Veteran's hypertension is related to his service-connected disabilities, to include iliac crest deformities or coronary artery disease. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). A Remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the Remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the Remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Id. As such, the Board finds that this case is not ready for appellate review and must be remanded for compliance with the Remand instructions. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1) The claims file and a copy of this remand should be returned to the VA examiner who conducted the May 2012 VA examination for an addendum to this examination report. If, and only if, this VA clinician is unavailable, then forward the claims file and a copy of this remand to another appropriate VA clinician for his or her review. The VA physician should provide an opinion as to whether it is at least as likely as not that the Veteran's currently diagnosed hypertension was (i) caused and/or (ii) aggravated (i.e., permanently worsened beyond the nature progress of the disease) by his service-connected disabilities, to include iliac crest deformities or coronary artery disease. Please specifically address whether there was any increase in severity of the Veteran's hypertension that was proximately due to or the result of the Veteran's service connected disabilities, to include iliac crest disease or coronary artery disease, and not due to the natural progress of hypertension. In rendering these opinions, the examiner should acknowledge and discuss the medical evidence of record, to include the Veteran's service treatment records; private treatment records; VA treatment records; the April 2011 and May 2012 VA examination reports; the Veteran's lay statements; and any other relevant information. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 2) Thereafter, the AMC/RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 3) Following the completion of the foregoing, and after undertaking any other development it deems necessary, the AMC should readjudicate the Veteran's claim. If the claim is denied, the AMC should then provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ M. G. MAZZUCCHELLI Acting 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).