Citation Nr: 1316645 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 06-32 686 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in St. Petersburg, Florida. Jurisdiction was subsequently transferred to the RO located in Detroit, Michigan. The claim was previously remanded in May 2012 and January 2013. The issue of the evaluation of the service connected posttraumatic stress disorder was referred by the Board in the January 2013 remand. However, the issue is yet to be adjudicated by the RO. Therefore, the issue is once again REFERRED for adjudication by the RO. 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 The Veteran seeks service connection for hypertension to include as due to his service connected posttraumatic stress disorder (PTSD). After a review of the claim file, the Board finds that, unfortunately, the claim must be remanded one more time for further development prior to the issuance of a decision. In Stegall v. West, 11 Vet. App. 268 (1998), the U.S. Court of Appeals for Veterans Claims held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. Under the circumstance, the case must be returned to the RO or the AMC for appropriate action. In a May 2012 remand, the Board requested that an examination be conducted and that the examiner provide an opinion regarding the etiology of the Veteran's hypertension. In rendering an opinion, the examiner was asked to discuss the significance of a National Institutes of Health (NIH) article cited by the Veteran in his May 2012 brief. A VA examination was conducted in July 2012. The examiner provided an opinion as to the relationship between hypertension and PTSD. The examiner stated there was no relationship between the two and stated that there is no confirmed evidence in the medical literature to date that PTSD causes hypertension. In rendering the opinion, however, the examiner did not discuss the cited NIH article. In January 2013, the Board remanded the claim to allow the July 2012 VA examiner to: (1) review and discuss the NIH article referenced by the Veteran; (2) review and discuss newly submitted articles by the Veteran's representative, regarding the relationship between PTSD and hypertension; and, (3) discuss the Federal Register statement of June 28, 2005, 70 F.R. 37040. The July 2012 examiner provided a new opinion in February 2013. In the opinion he stated he had reviewed the articles which he assumed had been submitted by the Veteran's representative. Regarding the articles, he stated that these were mostly abstracts of studies, mostly analyses of self reported questionnaires. Regarding the Federal Register statement, he stated that it "does not require further explanation." Regarding the NIH article, he stated that he was unable to review it as he did not find it in the claim file and did not find a reference for it. The above opinion does not comply with the Board's January 2013 remand instructions. Indeed, the examiner failed to discuss the Federal Register statement and rather noted that no further explanation was required. Regarding the NIH article, the Board has reviewed the May 2012 written brief submitted by the Veteran's representative and notes that there is a cited hyperlink to the article which the examiner should have been able to access through the internet. The cited link is: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1562315/?page=1. Given that the February 2013 opinion did not comply with the January 2013 remand instructions, the claim must be remanded once again for compliance. The Board will request that an opinion be obtained from a different examiner. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC forward the following to a to a VA examiner than the one who conducted the July 2012 examination: (a) a copy of the claim file (b) a copy of the NIH article cited in the May 2012 brief, which can be located on the Internet at (http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1562315/?page=1); and (c) a copy of the Federal Register citation contained at 70 F.R. 37040-37042 (June 28, 2005). The examiner should be asked to provide an opinion regarding the relationship between the Veteran's hypertension and his service connected PTSD. The examiner is specifically asked to discuss following as they pertain to the Veteran's situation: (a) the NIH article cited in the May 2012 brief submitted by the Veteran's representative; (b) the article submitted by the Veteran's representative with the December 2012 written brief; (c) and the Federal Register statement of June 28, 2005, 70 F.R. 37040. After the examiner has reviewed the claim file and the articles noted above, he or she is to render and opinion as to whether it is at least as likely as not (meaning likelihood of at least 50%) that any hypertension condition was caused by or aggravated by the service connected PTSD. The examiner should be advised that aggravation is defined as an increase in severity beyond the natural progression of a disorder, as distinguished from temporary or intermittent flare-ups that do not result in a worsening of the underlying disorder. If the Veteran's hypertension is found to have been aggravated by his PTSD, please ask the examiner to provide, to the extent possible, a baseline level of severity. A clear rationale for all opinions should be provided. Again, the examiner must discuss all of the articles cited and submitted by the Veteran and his representative and the Federal Register statement of June 28, 2005 in the rationale for his opinion. 2. Then, readjudicate the Veteran's claim. If his claim remains denied, he should be provided with a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. 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). _________________________________________________ DAVID L. WIGHT 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).