Citation Nr: 1325625 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 06-05 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from March 1982 to March 1986, and from February 2003 to January 2005, with additional Air Force National Guard service. This matter comes to the Board of Veterans' Appeals (Board) from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In November 2012 this matter was last before the Board at which time it was remanded for further development. 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 When this matter was last before the Board, it was remanded to have a VA examiner (K.Z.R., M.D.) enter an addendum opinion to the August 2011 VA examination and opinion. The addendum was specifically sought to address whether the Veteran's current hypertension disorder preexisted his period of service from February 2003 to January 2005. If so the examiner was asked to address whether it was at least as likely as not that the disorder was aggravated during this period of service and if so was the increase in severity clearly and unmistakably due to the natural progress of the disease. Following the Board's remand, an addendum opinion was obtained in February 2013, which was amended again in June 2013. However, each was obtained from J.L., FNP, BC, and it does not appear that the AMC/RO attempted to obtain an addendum opinion from K.Z.R., as directed in the Board's remand. The Veteran's representative urges that that matter be remanded for compliance with the Board's remand directives. See June 2013 Appellate Brief. The Agency of Original Jurisdiction's (AOJ) actions did not comply with the Board's remand directives. The obtained addendum opinions were not obtained from K.Z.R. and there is no indication that K.Z.R. was unavailable to complete the requested addendum. Accordingly, in light of Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Board remand "confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders"), this matter must again be remanded. The Board indicated that if K.Z.R. was unavailable, another examination should be conducted. Lastly, the Board notes that in her February 2013 opinion, J.L. indicated that the Veteran's hypertension was at least as likely as not "due to or the result of the Veteran's service[-]connected condition." She offered some rationale for this conclusion, but it is unclear to the Board what point she was trying to make, although it appears that she assumed that pre-hypertension was a service-connected condition that led to hypertension. In any event, upon remand K.Z.R., or a new VA examiner, is asked to address this question. The Veteran should also be provided notice on how to substantiate a claim for service connection on a secondary basis as this matter has now been reasonably raised. See 38 C.F.R. § 3.310 (2012). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with VCAA notice that notifies him of the information and evidence not of record that is necessary to substantiate a claim for service-connection of a condition on a secondary basis. This notice must also inform the Veteran of which information and evidence, if any, that he is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on his behalf. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159. 2. After the development directed in paragraph 1 has been completed to the extent possible, forward the complete claims folder to the VA examiner who provided the August 2011 VA examination and opinion report. The examiner is asked to provide an addendum to specifically address the following questions: a. Whether the current hypertension disorder preexisted his period of service from February 2003 to January 2005. See Smith v. Shinseki, 24 Vet. App. 40 (2010) (presumption of soundness attaches only when there is an induction examination in which the currently claimed disability was not noted). A complete rationale for the opinion is requested. i. If so, whether it is it at least as likely as not i.e. a 50 percent probability or greater) that the disorder was aggravated (i.e., permanently increased in severity) during that period of service. A complete rationale for the opinion is requested. ii. If so, was the increase in severity clearly and unmistakably (obviously, manifestly or undebatably) due to the natural progress of the disease. A complete rationale for the opinion must be provided. b. The examiner is also asked to address whether it is at least as likely as not (i.e. a 50 percent probability or greater) that any of the Veteran's service-connected disabilities caused hypertension? c. The examiner should opine whether it is at least as likely as not that hypertension has been aggravated (that is, permanently worsened) beyond the natural progress by any service-connected disability. For ease of reference, service connection is in effect for: (1) posttraumatic stress disorder (PTSD), (2) obstructive sleep apnea, (3) neural foraminal narrowing at L5/S1 secondary to mild disc protrusion and facet arthrosis with right-sided lumbosacral radiculopathy symptoms, (4) disc protrusion, C5/C6, (5) arthritis of the left ankle and (6) impairment of the sciatic nerve of the right lower extremity associated with neural foraminal narrowing at L5/S1 secondary to mild disc protrusion and facet arthrosis with right-sided lumbosacral radiculopathy symptoms. If the examiner who performed the August 2011 VA examination is no longer available or feels that another examination is necessary in order to provide the requested opinion, then an examination should be scheduled. The examiner's report must specifically reflect that the entire claims folder was reviewed. The examiner is specifically requested to provide responses to the above questions. 3. After the requested examination addendum report has been completed, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand. If a report is deficient in any manner, it should be returned to the examiner for corrective action. 4. Then readjudicate the claim. If any action remains adverse to the Veteran, issue a Supplemental Statement of the Case and allow the appropriate time for response. Then, return the case to the Board. 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). _________________________________________________ S. S. TOTH 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).