Citation Nr: 1325440 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 08-09 148 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to a service-connected disability. 2. Entitlement to service connection for a sleep disorder, to include as secondary to a service-connected disability. REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1969 to January 1972, including service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied service connection for hypertension, a sleep disorder, and posttraumatic stress disorder (PTSD). In November 2006, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in March 2008. In December 2010, the Board granted the Veteran's claim of entitlement to service connection for PTSD and remanded his claims for service connection for hypertension and a sleep disorder to the Appeals Management Center (AMC) for further evidentiary development, including obtaining outstanding VA and private treatment records and providing the Veteran with a VA examination to evaluate his hypertension and sleep disorder. The Board is obligated by law to ensure that the AMC complies with its directives; 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). The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the readjudication of the Veteran's claims of entitlement to service connection for hypertension and a sleep disorder, both to include as secondary to service-connected diabetes mellitus (DM), PTSD, or ischemic heart disease. The Veteran was afforded a VA examination to determine the etiology of his hypertension and sleep disorder in April 2011 with a February 2012 addendum opinion. The examiner concluded that the Veteran's hypertension and sleep apnea were not caused by his service-connected PTSD because there was no medical literature to support this. She did not provide an opinion as to the likelihood that the Veteran's hypertension or sleep apnea were related to his now service-connected ischemic heart disease or DM. Further, she failed to provide an opinion as to the likelihood that either hypertension or sleep apnea was aggravated by any of the Veteran's service-connected disabilities. In a November 2012 statement, the Veteran's representative provided citations to articles discussing a possible link between PTSD and hypertension, DM and hypertension, ischemic heart disease, DM, and hypertension, and sleep apnea and cardiovascular disease. This evidence was not discussed by the examiner, who stated that there is no current medical literature linking hypertension and PTSD. The Veteran's representative also reiterated that the Veteran is now service connected for ischemic heart disease and DM, in addition to PTSD, and that his hypertension and sleep apnea may be related to these service-connected disabilities. There is no opinion on this possible relationship. In light of these deficiencies, the April 2011 VA examiner's opinion with February 2012 addendum is not sufficient to render a decision on the issues of service connection for hypertension and a sleep disorder, to include as secondary to a service-connected disability. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As the United States Court of Appeals for Veterans Claims (Court) explained in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), the Board may consider only independent medical evidence to support its medical findings. The Court went on to say that, if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. See Colvin at 175. For the reasons described above, the Veteran's claims of entitlement to service connection for hypertension and a sleep disorder, both to include as secondary to service-connected PTSD, DM, and/or ischemic heart disease, must be remanded for an addendum opinion. Additionally, the Board notes that the Veteran has not been provided with notice regarding the requirements for secondary service connection for his hypertension and sleep disorder claims. On remand, the AMC should provide the Veteran with such notice. Finally, as the case is being remanded, the Board will take the opportunity to obtain any VA treatment records not yet associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with VCAA notice regarding what is required to substantiate a claim for secondary service connection. The Veteran should be afforded an opportunity to identify any relevant non-VA clinical evidence, or any non-clinical evidence, that might substantiate a claim on appeal. 2. Copies of all outstanding VA treatment records from the Montgomery VA Medical Center, and any other VA facility identified by the Veteran, should be obtained and added to the claims folder. 3. Following completion of the above, the Veteran's claims file should be returned to the VA examiner who conducted April 2011/February 2012, if possible, for an addendum opinion. The examiner must be provided with a list of each of the Veteran's service-connected disabilities. Specifically, the examiner should provide an opinion as to the likelihood that the Veteran's hypertension and/or sleep apnea was caused or aggravated (permanently increased in severity beyond the natural progression of the disorder) by any of his service-connected disabilities (to include PTSD, diabetes mellitus, and ischemic heart disease). The examiner should provide a specific statement addressing the likelihood of causation or aggravation of hypertension and of sleep apnea for each disability for which service connection is in effect when the opinion is rendered. The examiner must specifically discuss each of the articles cited in the November 2012 letter from the Veteran's representative. The examiner should state whether there are risk factors in the Veteran's case that make the Veteran's hypertension or sleep apnea more likely caused or aggravated by PTSD, diabetes mellitus, or ischemic heart disease than in the general population. The Veteran may be recalled for examination, if deemed necessary. If the examiner who conducted the April 2011/February 2012 VA examinations is unavailable, the Veteran should be afforded an examination with an appropriate examiner in order to determine the nature and etiology of his hypertension and any sleep disorder, to include sleep apnea. All indicated studies should be performed. The claims folder should be provided to the examiner for review of pertinent documents therein in connection with the examination, and the examination report should reflect that such a review was conducted. The examiner must be provided with a list of each of the Veteran's service-connected disabilities. The examiner must provide an opinion as to the likelihood that the Veteran's hypertension and/or any identified sleep disorder was caused or aggravated (permanently increased in severity beyond the natural progression of the disorder) by any of his service-connected disabilities (PTSD, diabetes mellitus, and ischemic heart disease). The examiner should discuss whether there are risk factors in the Veteran's case that make the Veteran's hypertension or sleep apnea more likely caused or aggravated by PTSD, diabetes mellitus, or ischemic heart disease than in the general population. The examiner must specifically discuss each of the articles cited in the November 2012 letter from the Veteran's representative. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). 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. The examiner must provide a complete rationale for any opinion provided. 4. After completing the above actions and any other development that may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims of entitlement to service connection for hypertension and a sleep disorder, both to include as secondary to service-connected diabetes mellitus, PTSD, and/or ischemic heart disease, should be readjudicated. If either of the claims remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, all issues properly on appeal should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board advises him that the conduct of the efforts as directed in this remand, and any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is critical and appreciated. He is also advised that failure to report for any scheduled examination may result in the rating of the claim on the evidence of record if it is an original claim or denial if it is a claim to reopen or for increase. See 38 C.F.R. § 3.655(b) (2012). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). _________________________________________________ Tresa M. Schlecht Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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. See 38 C.F.R. § 20.1100(b) (2012).