Citation Nr: 1329800 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 08-04 840 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for hypertension, to include as a residual of the Japanese Encephalitis vaccination. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from December 1976 to October 2006. This matter come before the Board of Veterans' Appeals (hereinafter Board) on appeal from an April 2007 rating decision, by Winston-Salem, North Carolina, Regional Office (RO), which denied the Veteran's claim of entitlement to service connection for hypertension, to include as a residual of the Japanese Encephalitis vaccination. Later in April 2007, jurisdiction over the Veteran's claims folder was transferred to the VA Regional Office in Roanoke, Virginia. In March 2011, the Veteran offered testimony at a hearing before the undersigned Veterans Law Judge at the Board's Central Office in Washington, DC. A transcript of this hearing has been associated with the claims folder. In July 2011, the Board remanded the case to the RO for further evidentiary development in this case. Following the requested development, including VA examination and medical opinion in October 2011, a supplemental statement of the case (SSOC) was issued in April 2012. In January 2013, the Board again remanded the case to the RO for further evidentiary development of this case. Following the requested development, including VA examination in February 2013, another SSOC was issued in March 2013. In July 2013, the Board once again remanded the case to the RO still further evidentiary development. Following the requested development, another SSOC was issued in August 2013. 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 Although the Board regrets the additional delay, further remand is required to ensure full compliance with VA's duty to assist the Veteran in substantiating his claim, and to protect the Veteran's due process rights. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013); Stegall v. West, 11 Vet. App. 268, 271 (1998). After a review of the Veteran's claims folder, the Board finds that further development of the case is necessary. The case was initially before the Board in July 2011, at which time it was determined that a VA examination conducted in December 2009 was inadequate in that, although it diagnosed the Veteran with essential hypertension, the examiner failed to offer an opinion as to whether it was at least as likely as not that the Veteran's hypertension manifested during, or as a result of active military service, or whether it would have manifested within one year of the Veteran's separation from active duty. It was determined that, due to the relatively short period of time between the Veteran's separation from active duty and his diagnosis of essential hypertension, such a medical opinion was necessary before appellate review of the claim. Consequently, the Veteran's claim was remanded for a new examination that provided the necessary nexus opinion. In compliance with the Board's remand, the Veteran was afforded a VA examination in October 2011. Following the examination, the examiner determined that the Veteran does not, nor has ever been diagnosed with hypertension or isolated systolic hypertension based on the VA criteria for diagnosing hypertension. In a January 2013 remand, the Board determined that the examiner did not follow VA's criteria for determining the existence of hypertension, as the readings taken during the October 2011 examination were shown to have been taken on the same date. That is, VA's criteria clearly states that the blood pressure readings must be taken two or more times on at least three different days to support a diagnosis of hypertension. See 38 C.F.R. § 4.104, Diagnostic Code 7101. The Board also determined that the VA examiner did not address the findings from the December 2009 VA examination, as directed by the Board's prior Remand. Consequently, the Board found that the October 2011 medical opinion did not comply with the RO's instructions and was, therefore, inadequate for that reason as well. Thus, the claim was remanded to the RO for a new examination and opinion regarding the presence and etiology of the claimed hypertension. In compliance with the Board's January 2013 remand, the Veteran was afforded another VA examination in February 2013. Following an examination, the examiner noted that the Veteran's symptoms did not meet the criteria for a diagnosis of hypertension. The examiner stated that the Veteran did not have a diagnosis of hypertension while in the military. It was noted that the Veteran has never taken any medication for high blood pressure. The examiner noted that the Veteran has had several blood pressure readings since discharge from the military which were normal. The examiner observed that the Veteran has aged since discharge from the military and he had no history of hypertension. He further noted that the Veteran has seen a primary care physician, both VA and non-VA, and no diagnosis of hypertension; he has aged and has gained weight, all of which are risk factors for hypertension. The examiner opined that the claimed condition was less likely as not incurred in or caused by the claimed inservice injury, event or illness. In the July 2013 remand, the Board noted that while the February 2013 examination provided a nexus opinion, it failed to provide the 3 day blood pressure readings, but simply stated that the Veteran does not meet the criteria for being hypertensive. Moreover, it was found that the February 2013 examiner again failed to address the findings from the December 2009 VA examination; it was not mentioned in the history of the examination nor the rationale given for the negative medical nexus rendered by the examiner. Consequently, it was determined that the February 2013 medical opinion did not comply with the RO's instructions and was, therefore, inadequate. As such, the Veteran's claim was remanded for a new VA examination that provided the necessary nexus opinion with consideration of the December 2009 VA examination report. In compliance with the Board's remand, a DBQ examination was conducted in July 2013. Following the claims folder, the examiner stated that the claimed condition was less likely than not incurred in or caused by the claimed inservice injury, event or illness. The examiner explained that the Veteran stated that he has never been diagnosed with hypertension nor has he ever taken medication for high blood pressure. A review of his C&P examination in 2011 and 2013 confirm that he does not have hypertension. Of note, the Veteran was under the impression that his claim had been closed previously as he does not have hypertension. The examiner stated that the non-existent hypertension is not related to his military service. Again, while the examiner opined that the Veteran does not currently have a diagnosis of hypertension and that recent VA examinations in 2011 and 2013 failed to confirm a diagnosis of hypertension, he did not address the findings from the December 2009 examination which reflects a diagnosis of essential hypertension. The examiner also failed to answer the question as to whether it is at least as likely as not that the Veteran's essential hypertension diagnosed in the December 2009 VA examination was a result of active military service. Given the fact that the physician who provided the July 2013 VA opinion failed to answer the specific questions that were posed by the Board, the examination report is inadequate for further appellate review. Regrettably, in order to properly and fairly adjudicate the Veteran's claim another remand is necessary to ensure compliance with specific directives of the Board's prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). To ensure that VA has met its duty to assist and to ensure full compliance with due process requirements, the Board must, regrettably, once again REMAND this case to the RO via the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The AOJ should contact the VA cardiologist who examined the Veteran in July 2013 and obtain from him an addendum to his examination report that provides an extended rationale for his opinion regarding the presence and etiology of the Veteran's claimed hypertension. The Veteran's claims file, including a copy of this remand, must be made available to the cardiologist for review in connection with the clarification sought. In particular, the cardiologist must address the findings of the December 2009 VA examination which provided a diagnosis of essential hypertension; and, the examiner is asked to opine as to whether it is at least as likely as not that the Veteran's essential hypertension diagnosed in the December 2009 VA examination, as well as any currently diagnosed hypertension (if any) manifested during, or as a result of, active military service. In the alternative, the examiner is asked to opine as to whether it is at least as likely as not, due to the relatively short period of time between the diagnosis of hypertension and separation from active duty, that the Veteran's hypertension diagnosed in December 2009, and any currently diagnosed hypertension (if any) manifested within one year of his separation from active duty. A complete rationale for all opinions offered must be provided. 2. To help avoid future remand, the AOJ must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 3. Thereafter, the AOJ should readjudicate the issue of on appeal on the basis of all evidence of record and all applicable laws and regulations. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC), which includes a summary of additional evidence submitted. The SSOC must provide reasons and bases for the decision reached. They should be given the opportunity to respond. After the above actions have been accomplished, the case should be returned to the Board for further appellate consideration, if otherwise in order. No action is required of the Veteran until he receives further notice. By this remand the Board intimates no opinion, either legal or factual, as to the ultimate determination warranted in this case. 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). _________________________________________________ J. A. MARKEY 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).