Citation Nr: 1323314	
Decision Date: 07/22/13    Archive Date: 08/01/13

DOCKET NO.  05-41 665	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for hypertension, to include as secondary to a service-connected disability.


REPRESENTATION

Appellant represented by:	American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Chapman, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1969 to June 1976 and he had National Guard service until June 1985.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which in part, denied the reopening of the claim for service connection for hypertension.  In January 2007, the Veteran testified at a hearing at the RO before the undersigned Acting Veterans Law Judge sitting in Washington, DC.  A transcript of this testimony is associated with the claims file.

In October 2010, the Board reopened the Veteran's claim for service connection for hypertension and remanded the case for additional development and adjudication.  This matter was again remanded by the Board in September 2012 for additional development.

This appeal contains a hybrid record; part is in a physical claims folder and part is in the Virtual VA paperless claims processing system; any future consideration of this appellant's case should take into consideration the existence of this electronic record.

This 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 Board's September 2012 remand asked that the case be returned to the physician who conducted the December 2010 Compensation and Pension examination for a supplemental medical opinion.  The RO was instructed that if the physician was not available, to forward the claims folder to a physician of the appropriate expertise.  A supplemental opinion was obtained in October 2012; however, this opinion is inadequate as it does not address the aggravation element of the opinion requested.  The October 2012 opinion shows that the section where the examiner would have opined as to aggravation of a nonservice-connected condition by a service-connected condition was left blank.    

A remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  While the Board regrets the additional delay in this case, since the RO has not substantially complied with the Board's September 2012 remand instructions, a further remand is necessary.

Accordingly, the case is REMANDED for the following actions:

1.  Provide the claims folder to a physician of the appropriate expertise.  The entire claims file must be reviewed by the opinion provider.  The physician should review the record, and provide an opinion as to the following:

Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current hypertension is aggravated by his service-connected PTSD, diabetes mellitus, and/or ischemic heart disease.

The opinion must include a complete rationale for all conclusions expressed.

2.  Following completion of the above, review the claims folder and ensure that all of the foregoing development has been conducted and completed in full.  If any development is incomplete, appropriate corrective action is to be implemented.  

3.  Thereafter, readjudicate the Veteran's claim for service connection for hypertension in light of any additional evidence added to the record.  If any benefit on appeal remains denied, a supplemental statement of the case should be issued, and the Veteran and his representative should be afforded an opportunity to respond.  The case should then be returned to the Board for appellate review.     

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 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.C. GRAHAM
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).