Citation Nr: 1323482 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 10-23 827 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from May 1968 to May 1972. This appeal to the Board of Veterans' Appeals (Board/BVA) is from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In his June 2010 Substantive Appeal (on VA Form 9), the Veteran requested a hearing at the RO before a Veterans Law Judge of the Board, which is often and more commonly referred to as a Travel Board hearing. But in another written statement received that same month, the Veteran withdrew his hearing request and instead requested a hearing before a local Decision Review Officer (DRO). The DRO hearing was in February 2011 and a transcript of it is of record. In a November 2012 decision, the Board denied two other claims the Veteran also had appealed - for service connection for Type II Diabetes Mellitus and a cardiac disability, including an irregular heartbeat, which he alleged was secondary to the Type II Diabetes Mellitus. So those claims are no longer at issue. However, the Board instead remanded his remaining claim for service connection for hypertension for additional development, including especially to have him undergo a VA compensation examination for a medical nexus opinion concerning whether this condition was incurred in or, if pre-existing, aggravated by his military service. A VA compensation examiner provided an opinion on this determinative issue of etiology in March 2013 and, after considering it, the Appeals Management Center (AMC) in Washington, DC, which oversaw the additional development of this claim on remand in lieu of the RO, issued a Supplemental Statement of the Case (SSOC) in June 2013 continuing to deny this claim. So this claim is again before the Board. Since, however, the opinion is inadequate, the Board is again remanding this claim to the RO via the AMC in Washington, DC, for supplemental comment. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with remand orders, and the Board itself commits error as a matter of law in failing to ensure compliance.). REMAND The prior remand was to ascertain whether the Veteran's current hypertension clearly and unmistakably existed prior to him beginning his military service and, if it did, whether it also clearly and unmistakably was not aggravated during or by his service, meaning over and beyond its natural progression. Also, if it instead was not determined to have pre-existed his service, then an opinion was additionally needed as to whether it was otherwise caused by his service, meaning incurred in or incepted during his service. As the Board pointed out, his blood pressure readings when examined for enlistment into service and during his separation examination were 138/80 and 130/84, respectively. The Board indicated these readings were the only documented blood pressure readings in service and consistent with or suggestive of pre-hypertension. The Board did not have the necessary medical expertise to make this determination, however. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991)(indicating the Board is prohibited from substituting its own unsubstantiated medical opinion). According to 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1), hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days, and for purposes of this section the term hypertension means that diastolic blood pressure (i.e., the bottom number) is predominantly 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure (i.e., referring to the top number) is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. Pre-hypertension was not diagnosed during the Veteran's service based on those findings at time of his enlistment and separation, but nonetheless due to what appeared to be marginal readings additional development was ordered to determine whether those findings provided clear and unmistakable evidence that hypertension pre-existed his service and, if so, whether it was aggravated during his service. In the event there was not clear and unmistakable evidence of pre-existing disability, the Board sought, in the alternative, an opinion as to whether the current diagnosis of hypertension was otherwise related to his service. The remand directives instructed the examiner to specifically comment on the blood pressure readings that were noted at enlistment and separation with follow-up instructions based on whether clear and unmistakable evidence was or was not found. The March 2013 VA examination report shows the examiner noted the blood pressure reading in March 1968 and February 1972, so at time of enlistment and separation, but she did provide any meaningful comments about these readings. She merely followed up with a narrative that the Veteran's hypertension had existed prior to his service. Since neither one of the service examination reports that recorded these readings included a diagnosis of hypertension, meaning persistently elevated blood pressure, a comment that would have satisfied the Board's inquiry would have explained why or how these readings signify hypertension. Most of the probative value of a medical opinion comes from its explanatory rationale, not just from review of the claims file. In Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that a medical opinion should contain a conclusion and a reference to supporting data with a "reasoned medical explanation connecting the two." Neives-Rodriguez, at 301. A medical opinion is considered adequate, versus inadequate, when it is based upon consideration of the Veteran's relevant medical history and examinations and describes the disability in sufficient detail so the Board's evaluation of the disability will be fully informed and permit the Board to weigh the probative value of the opinion against others. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). And to be adequate, a medical opinion must do more than merely state a conclusion regarding the etiology of the claimed disorder, instead, must also support the conclusion with sufficient rationale and explanation. Stefl, 21 Vet. App. at 124. The probative value of an opinion is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support [the] opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). See also Miller v. West, 11 Vet. App. 345, 348 (1998) ("A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record."); Dennis v. Nicholson, 21 Vet. App. 18, 22 (2007) ("The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases." (citing Abernathy v. Principi, 3 Vet. App. 461, 465 (1992)). There resultantly has not been compliance, even what could be considered as acceptable substantial compliance, with this prior remand directive. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (another remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Accordingly, this claim is again REMANDED for the following additional development and consideration: 1. Return the Veteran's claims file to the March 2013 VA examiner for an addendum. If she is not available, arrange for the claims file to be reviewed by another competent medical professional. The alternate medical professional will make the determination of whether another examination is needed prior to offering an opinion. The examiner, whoever designated to provide this supplemental comment, is advised that "clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence."). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the non-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). In comparison, the term "as likely as not" (at least 50-percent probability) does not mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. Based on a review of the claims file and any additional examination if deemed warranted, the examiner must respond to the following: * Is there clear and unmistakable evidence that the Veteran's hypertension pre-existed service? The examiner must explain the basis of his or her statement and specifically comment on the significance of the 138/80 and 138/84 blood pressure readings noted in service at time of enlistment and separation. To this end, the examiner should make reference to both medically and factually relevant evidence in the record for concluding the hypertension preexisted the Veteran's service, especially considering this evidence has to obvious or manifest to be considered clear and unmistakable. * If there is clear and unmistakable evidence that the Veteran's hypertension pre-existed his service, is there also clear and unmistakable evidence that his pre-existing hypertension was not aggravated during or by his service, that is, did not permanently or chronically increase in severity during or as a result of his service beyond its natural progression? The examiner must explain the medical basis of his/her comment, preferably citing specific evidence in the file supporting conclusions. * If, on the other hand, the Veteran's hypertension did not clearly and unmistakably pre-exist his service, what is the likelihood (very likely, as likely as not, or unlikely) that his hypertension incepted during his service or is otherwise related or attributable to his military service? And just as before, the examiner must explain the basis for his/her comment, in so doing making reference to both medically and factually relevant evidence in the record. 2. Then readjudicate this claim in light of this and all other additional evidence received since the June 2013 SSOC. If the claim continues to be denied, send the Veteran and his representative another SSOC and give them an opportunity to submit still additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ KEITH W. ALLEN 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).