Citation Nr: 1321494 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 08-04 840 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for hypertension, to include as a residual of the Japanese Encephalitis vaccination. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran had active service from December 1976 to October 2006. This matter comes before the Board of Veterans' Appeals(Board) on appeal from a rating decision of the Department of Veterans Affairs Regional Office (RO) in Winston-Salem, North Carolina, denying the claim currently on appeal. The Veteran testified at a hearing before the undersigned Veterans Law Judge at the Board's Central Office in Washington, DC in March 2011. A written transcript of this hearing has been prepared and incorporated into the evidence of record. The Board in a July 2011 determination, disposed of another matter previously on appeal and remanded the issue of service connection for hypertension to the RO for further development. In January 2013, the Board determined that the development undertaken did not adequately address the matter on appeal and again remanded it for additional development. Such has been completed and this matter is returned to the RO for further consideration. 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, the Board finds that once again, further RO action on the Veteran's claim for service connection for hypertension is warranted, even though such will, regrettably, further delay an appellate decision on this matter. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the January 2013 remand, the Board pointed out that the development to date had been insufficient. Specifically the Board pointed out that a December 2009 VA examination which did diagnose essential hypertension and determined that this hypertension was not related to the Japanese Encephalitis Vaccine (JAV) received in service, was inadequate as it failed to address other potential bases for granting service connection. It directed the RO to obtain another VA medical examination and opinion as to whether the essential hypertension diagnosed in the December 2009 VA examination was as likely as not related to service, to include as to whether it had been manifested within the one year presumptive period for service connection for hypertension. See 38 C.F.R. § 3.307, 3.309. Thereafter, an October 2011 VA examination was obtained wherein the examiner determined that the Veteran does not, nor has ever been diagnosed with hypertension or isolated systolic hypertension based on the VA criteria for diagnosing hypertension. This examination did not address the findings from the December 2009 VA examination, as directed by the Board's July 2011 Remand. The examiner also failed to have followed the VA's own criteria for determining the existence of hypertension, as the readings taken during this examination are shown to have all been taken on the same date, October 25, 2011. The VA's criteria clearly states that the blood pressure readings must be taken two or more times on at least three different days to support a diagnosis of hypertension. See 38 C.F.R. § 4.104, Diagnostic Code 7101, supra. Thus the Board's remand in January 2013 was for the purpose of correcting the inadequacies in these prior examinations. The Board also pointed out that even if hypertension were not diagnosed that the examiner must provide an opinion as to whether the essential hypertension diagnosed in the December 2009 VA examination was as likely as not related to service, to include as to whether it had been manifested within the one year presumptive period for service connection for hypertension. See 38 C.F.R. § 3.307, 3.309. See Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin 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). The VA examination with disability benefits questionnaire (DBQ) obtained in March 2013 pursuant to this January 2013 remand, fails entirely to comply with the Board's directives in its January 2013 remand. The specific directive (which was recited in the DBQ) directed the examiner as follows: All indicated studies should be performed, to include blood pressure readings over a 3 day period. All manifestations of current disability should be described in detail. The examiner is asked to opine as to whether it is at least as likely as not that the Veteran's essential hypertension diagnosed in the December 2009 VA examination, as well as any currently diagnosed hypertension (if any) manifested during, or as a result of, active military service. In the alternative, the examiner is asked to opine as to whether it is at least as likely as not, due to the relatively short period of time between the diagnosis of hypertension and separation from active duty, that the Veteran's hypertension diagnosed in December 2009, and any currently diagnosed hypertension (if any) manifested within one year of his separation from active duty. Unfortunately the March 2013 VA examination/DBQ failed to provide the 3 day blood pressure readings, but simply stated that the Veteran does not meet the criteria for being hypertensive. The examination did include 3 blood pressure readings with the first reading done on October 25, 2011, and the other two readings done on February 25 and 26, 2013. This was noted to only be sufficient if the Veteran has previously established diagnosis of hypertension. In this matter, while there is a past history of hypertension being diagnosed, this is not adequate where the Veteran was presently said to not be hypertensive. Further it does not comply with the Board's remand directives. Additionally, the March 2013 examiner again failed to address the findings from the December 2009 VA examination (the failure of which had triggered the previous remand). The examination is not mentioned in the history portion of this examination and is also not discussed at all in the rationale. In view of the continued failure to address the remand directives in the VA examinations, the Board finds that this matter must be once again remanded to correct this evidentiary and due process deficiency. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for a VA examination before an appropriate specialist regarding his claimed hypertension. The Veteran's claims file and a copy of this remand must be provided to the examiner for review. All indicated studies should be performed, to include blood pressure readings over a 3 day period. All manifestations of current disability should be described in detail. The examiner is asked to opine as to whether it is at least as likely as not that the Veteran's essential hypertension diagnosed in the December 2009 VA examination, as well as any currently diagnosed hypertension (if any) manifested during, or as a result of, active military service. In the alternative, the examiner is asked to opine as to whether it is at least as likely as not, due to the relatively short period of time between the diagnosis of hypertension and separation from active duty, that the Veteran's hypertension diagnosed in December 2009, and any currently diagnosed hypertension (if any) manifested within one year of his separation from active duty. A complete rationale for all opinions offered must be provided. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's service connection claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ J. A. MARKEY 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).