Citation Nr: 1326952 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 10-06 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from October 1964 to October 1966, and from October 1966 to January 1971. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a May 2006 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Chicago, Illinois, which denied the Veteran's claim. In July 2009, the Veteran testified before a Decision Review Officer at the RO. In April 2012, the Veteran testified before the undersigned Veterans Law Judge ("VLJ"). Transcripts of the hearings have been associated with the Veteran's claims folder. The Board has previously considered this claim. In March 2013, the Board remanded the claim to the agency of original jurisdiction ("AOJ") for additional development, specifically to afford the Veteran required notice concerning how to substantiate his claim under the VCAA, infra, which was provided in April 2013, and to provide him with another VA examination pursuant to his claim. Thereafter, in a May 2013 Supplemental Statement of the Case ("SSOC"), the AOJ continued to deny the Veteran's claim. For reasons set forth below, however, the Board concludes that there has not been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 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 on his part. REMAND The Veteran contends that his hypertension is the result of, or was aggravated by his service-connected diabetes mellitus, type II. See Board hearing transcript, April 2012. The Board has determined that additional development is necessary prior to adjudication of the claim, even though such action will, regrettably, further delay an appellate decision in this appeal. If a VA compensation and pension examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2, 19.9(a) (2012); Bierman v. Brown, 6 Vet. App. 125, 129 (1994). Moreover, the United States Court of Appeals for Veterans Claims has held "that a remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders." Stegall at 271. As such, compliance with the terms of a remand is necessary prior to further appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id. In its March 2013 remand, the Board directed the VA examiner to review the entire claims folder and provide an opinion as to whether it was at least as likely as not that the Veteran's hypertension was proximately due to, the result of, or had been aggravated by his service-connected diabetes mellitus, type II. Review of the VA examiner's opinion, however, reveals that, although he opined that it was less likely than not that the Veteran's hypertension was the result of some incident, disease or injury during active duty, or had been caused by his service-connected diabetes mellitus, type II, the examiner stated further that "It has also not aggravated DM as his renal function is normal." Although this may be an error in syntax, the Board must have a clear opinion as to whether hypertension has been aggravated by diabetes mellitus, type II. Therefore, although the Board sincerely regrets the necessity of yet another remand, it nonetheless finds that such action is necessary to comply with governing case law and regulations, which mandate that claims be remanded for full compliance with the Board's instructions (see Stegall, supra) and to ensure that the Veteran's claim is fairly adjudicated. The AMC/RO should arrange for the Veteran to undergo a VA examination only if the clinician who provided the May 2013 opinion is unavailable or is unable to provide the requested opinion without examining the Veteran. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should forward the claims file to the clinician who provided the May 2013 opinion, only if available, for a supplemental medical opinion. The claims folder and a copy of this remand must be made available to the examiner for review of the case. The examiner must note in the report that a review of the complete claims folder, as well as all virtual records, has been performed. The examiner should specifically address the question of whether it is at least as likely as not (i.e., whether there is at least a 50 percent probability) that the Veteran's hypertension was aggravated (chronically worsened) by his service-connected diabetes mellitus, type II. If it is determined that there is aggravation, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of severity of the nonservice-connected condition before the onset of aggravation. Any and all opinions must be accompanied by a complete rationale. The examiner should note that "aggravation" is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. The clinician is also advised that the term "as likely as not" does not mean within the realm of 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 causation as to find against causation. "More likely" and "as likely" support the contended causal relationship; "less likely" weighs against the claim. If the examiner is unable to provide the requested opinion without resorting to speculation, it should be so stated, along with a complete rationale for why he or she is unable to provide such an opinion. 2. If the VA examiner who provided the May 2013 opinion is not available, the claims folder should be referred to an examiner in the appropriate specialty for a supplemental medical opinion addressing the aforementioned. If the examiner indicates that he or she cannot respond to the Board's question without examination of the Veteran, such should be afforded the Veteran. 3. Thereafter, the RO/AMC should ensure that the requested development has been fully performed. See Stegall, supra. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with an SSOC and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. 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). (Continued on the next page) 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. L. Kennedy 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).