Citation Nr: 1334315 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 09-37 375 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for hypertension, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to July 1970. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in North Little Rock, Arkansas (RO). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Board remanded the Veteran's claim in March 2011 for a VA medical examination and opinion. The Board ordered that opinions be provided from a VA examiner regarding whether the Veteran's currently diagnosed hypertension is related to his military service and whether the disorder was caused or aggravated by a service-connected disability, to include his service-connected diabetes mellitus. In requesting these opinions, the Board directed the examiner to consider an April 2010 opinion from the Veteran's private physician Dr. T.L., who opined that the Veteran's diabetes adversely contributed to his current hypertension. The Board instructed the examiner to provide a complete rationale for all opinions provided. The Veteran underwent a VA examination for his hypertension claim in May 2011. Following a clinical examination of the Veteran and review of the claims file, the VA examiner opined that the Veteran did not have hypertension associated with his military service or with a disorder associated with service, to include diabetes. The examiner further opined that it was "at least as likely as not" that the Veteran's hypertension is essential, not secondary, and that the disorder is unrelated to his diabetes or any other military service condition. However, the examiner did not address whether the Veteran's hypertension is aggravated by a service-connected disability, to include diabetes. The May 2011 opinion is inadequate because it does not fully address the Veteran's claim for secondary service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that once VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is adequate). Moreover, the May 2011 opinion does not comply with the March 2011 remand directives. The Board notes that the March 2011 remand conferred on the Veteran the right to compliance with the remand orders, as a matter of law. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board's failure to insure compliance would constitute error in this case. Thus, the claim must be remanded in order to obtain an additional medical opinion in this case. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. The Veteran must be requested to complete and return authorization and consent to release information forms regarding any private treatment. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO must request all outstanding VA treatment records. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Thereafter, the RO must forward the claims file to the May 2011 examiner and request an addendum opinion regarding the Veteran's hypertension. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. Following a review of medical records, as well as the Veteran's competent lay statements, the examiner must opine whether the Veteran's hypertension is aggravated by a service-connected disability, to include diabetes. In the event the examiner who conducted the May 2011 examination is no longer available, the claims files and any pertinent electronic evidence that is not contained in the claims files must be provided to another examiner to review the Veteran's pertinent history and provide the required opinion with supporting rationale. In providing the requested opinion, the examiner must consider and reconcile any conflicting medical opinions regarding the relationship between the Veteran's hypertension and diabetes, to include the April 2010 opinion from the Veteran's private physician, Dr. T.L. Another examination of the Veteran must only be performed if deemed necessary by the health care professional providing the opinion. All rendered opinions must be accompanied by a thorough rationale. If the examiner cannot render a requested opinion without resorting to speculation, the examiner must provide the reasoning for that determination. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether the opinion could not be rendered due to limitations of knowledge in the medical community at large or those of the particular examiner. The report prepared must be typed. 3. After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim on appeal must be readjudicated. If the issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).