Citation Nr: 1331235 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 09-36 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for hypertension, claimed 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 Sarah Richmond, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to February 1972. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee (RO), which denied service connection for hypertension secondary to diabetes mellitus type II. In January 2011 the Veteran testified before the undersigned Veterans Law Judge at a Board hearing at the RO. This case was previously before the Board in March 2011 at which time the Board remanded the case for a VA examination addressing the claim on appeal. Unfortunately, for the reasons discussed in more detail below the examination is inadequate for the Board to make a decision in this case. 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 The Board previously remanded this matter in March 2011 so that a VA examination could be provided to address the etiology of the Veteran's hypertension, specifically whether it was caused or aggravated by his service-connected diabetes mellitus type II. It was noted that the examiner must provide a rationale for the opinion with references to the evidence of record. It was also noted that any citations to authority or treatise material would be extremely helpful. In addition, the examiner was to address an October 2008 letter from the Veteran's private physician Dr. P.N., who indicated that the Veteran's hypertension might be related to the diagnosed diabetes mellitus type II. In April 2011, a VA examiner provided an opinion that the Veteran's morbid obesity was aggravating the hypertension and diabetes and that "To say the diabetes is aggravating hypertension in the face of morbid obesity is specious." The RO returned the claims file to the examiner for a rationale for the opinion. In June 2011, the same examiner provided an addendum opinion that he "merely can reiterate that statement. It is my opinion as a bpard[sic] certified internist of several decades that the diabetes and hypertension relate to the morbid obesity, and that the hypertension is neither caused nor aggravated by diabetes." While the examiner's expertise in the field is certainly a factor in considering the probative value of the opinion provided, this does not constitute an adequate rationale for why he believes the Veteran's hypertension was not caused or aggravated by his diabetes mellitus type II, as there is no explanation as to how he came to this conclusion, nor any discussion of the medical principles on which he is relying. Furthermore, the doctor did not discuss the October 2008 letter from the private physician, Dr. P.N. as requested in the Board's remand. For these reasons the examination report is inadequate. The Board is obligated by law to ensure that the RO complies with its directives. Compliance by the Board or the RO is neither optional nor discretionary. 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, and a further remand of the case will be mandated. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the previous examiner who provided the opinions in April 2011 and June 2011 for a supplemental opinion. If this examiner is not available, then reschedule the Veteran for another VA examination in the appropriate specialty to determine whether the Veteran's hypertension is secondary to his service-connected diabetes mellitus, type II. The claims folder must be made available to the examiner for review and all indicated testing should be accomplished. The examiner must review the claims file prior to examination. The VA examiner should specifically discuss an October 2008 letter from Dr. P.N. indicating that the Veteran's hypertension may be related to his diagnosed diabetes mellitus, type II. The examiner should then state: a). Whether it is at least as likely as not that hypertension is proximately due to or the result of the Veteran's service-connected diabetes mellitus, type II; and b). Whether it is at least as likely as not that hypertension is permanently aggravated by the Veteran's 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. 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 examiner must provide a complete rationale for his or her opinion with references to the evidence of record. Citation to medical authority/treatise would be extremely helpful. 2. After all development has been completed, the RO/AMC should review the case again based on the additional evidence. If the benefits sought are not granted, the RO/AMC should furnish the Veteran and his representative with a Supplemental Statement of the Case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. 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. 2013). _________________________________________________ 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) (2013).