Citation Nr: 1318546 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 05-05 653 ) 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 service-connected type II diabetes mellitus. REPRESENTATION Appellant represented by: Michael Viterna, Attorney at Law ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1963 to March 1964 and from May 1964 to November 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefit sought on appeal. The Board remanded the case for further development in July 2008. This development was completed and the case was returned to the Board for appellate review. In September 2009, the Board issued a decision, which in pertinent part, denied the Veteran's claims for entitlement to service connection for hypertension. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in a September 2010 Order, the Court vacated the September 2009 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). In April 2011, the Board remanded this matter for additional evidentiary development. In April 2011 Board remand, the Board noted that there was no VA Form 21-22a, Appointment of Attorney or Agent as Claimant's Representative, for Michael R. Viterna in the claims file. In November 2012, a copy of a VA Form 21-22a appointing Michael R. Viterna as the Veteran's representative was associated with the claims file. Thus, the Veteran's representative is noted as Michael R. Viterna, as noted above. 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 the April 2011 remand, the Board requested that the Veteran be afforded a VA examination to determine the etiology of any hypertension present. The examiner was requested to comment as to whether it was at least as likely as not that the Veteran currently had hypertension that was either caused by or permanently aggravated by his service-connected type II diabetes mellitus. The examiner was requested to cite to any pertinent medical literature in favor of or against the Veteran's claim. A VA examination was obtained in April 2011. The VA examiner stated that the Veteran's hypertension was considered to be essential. Contributing factors to his hypertension would include morbid obesity and a long-standing history of tobacco use. The VA examiner opined that it is not likely that the Veteran's hypertension was caused by or permanently aggravated by his service-connected diabetes mellitus, as the hypertension preceded the diagnosis of diabetes mellitus. The Board finds that the April 2011 VA examination is inadequate. Contrary to the VA examiner's statement that the hypertension preceding the diagnosis of diabetes mellitus, the evidence of record reflects that the conditions were diagnosed around the same time in 2001. See August 2001 VA treatment record. More importantly, the VA examiner did not provide an adequate rationale for the opinion that the Veteran's hypertension was not permanently aggravated by his service-connected diabetes mellitus. Even if the diagnosis of hypertension preceded the diagnosis of diabetes mellitus, the condition could still have been aggravated by diabetes mellitus. The VA examiner also did not cite any pertinent medical literature in favor of or against the Veteran's claim, as requested in the April 2011 remand. If VA provides the claimant an examination in accordance with the duty to assist, the examination must be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Court has stated that compliance by the Board or the AOJ is neither optional nor discretionary. 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. See Stegall v. West, 11 Vet. App. 268 (1998). As the April 2011VA examination is inadequate, the claim must be remanded for a new opinion. Accordingly, the case is REMANDED for the following action: 1. Provide the claims file to the April 2011 VA examiner, or if the examiner is unavailable, a clinician with appropriate expertise, to provide an addendum opinion as to whether it is at least as likely as not that the Veteran currently has hypertension that is either (1) caused by or (2) permanently aggravated by his service-connected type II diabetes mellitus. In so doing, the examiner should cite to any pertinent medical literature in favor of or against the Veteran's claim. The VA clinician is requested to provide a thorough rationale for any opinion provided. The clinician should review the claims folder and this fact should be noted in the accompanying medical report. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. If the VA examiner determines that another VA examination is necessary to provide the opinions, such should be accomplished. 2. Thereafter, readjudicate the issue on appeal of entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus. If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. 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). _________________________________________________ WILLIAM YATES 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).