Citation Nr: 1336196 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 06-32 686 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for hypertension, to include as due to the service connected posttraumatic stress disorder (PTSD), diabetes mellitus and/or coronary artery disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in St. Petersburg, Florida. Jurisdiction was subsequently transferred to the RO located in Detroit, Michigan. The claim was previously remanded in May 2012, January 2013, and May 2013. The issue of the evaluation of the service connected PTSD was referred by the Board in the January 2013 and May 2013 remands. However, the issue is yet to be adjudicated by the RO. Therefore, the issue is once again REFERRED for adjudication by the RO. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for hypertension to include as due to the service connected PTSD, diabetes mellitus and/or coronary artery disease. After a careful review of the evidence of record, the Board finds that, unfortunately, an additional remand is needed prior to deciding the claim. The Board regrets the additional delay but finds the additional development is needed to ensure due process. In the most recent remand of May 2013, the Board requested that a new examiner be asked to review the claim file and consider an NIH article cited by the Veteran in his May 2012 brief. The examiner was to provide an opinion as to the etiology of hypertension and any relationship to the diagnosed PTSD. The RO was requested to provide the VA examiner with a copy of the NIH article cited by the Veteran in the May 2012 brief. A new opinion was obtained in August 2013. The examiner stated that Veteran's claim and electronic medical data, including VBMS, and the July 2012 and February 2013 VA examinations and opinions were reviewed. The examiner further noted that the May 2012 and December 2012 articles and the Federal Register statement of June 28, 2005, 70 F.R. 37040 were reviewed. He provided an opinion stating that he concurs with the previous opinion given by Dr Frank in February 2013. The opining examiner stated that after reviewing all the available standard medical literature: . . .it is my opinion that PTSD causes temporary increase in blood pressure on some occasions, but does not cause or aggravate hypertension. . . . The articles I was referred to are abstracts of studies, mostly analyses of self reported questionnaires that appeared in a variety of International Journals. However, to date there is no accepted confirmation in the medical literature that PTSD causes sustained hypertension. In other words, in reviewing the causes and risk factors of hypertension in the medical literature I am unable to find PTSD as a cause for sustained hypertension. In addition, as far as the Federal Register statement of June 2005 is concerned, that a presumption of hypertension due to PTSD has been recognized by the VA in some cases, does not require further explanation. The Board finds the opinion inadequate in two respects. In the May 2013 remand, the Board was troubled by the February 2013 VA examiner's assertions that regarding the Federal Register statement, it "does not require further explanation." The Board found that this was not a discussion of the Federal Register. It is very troubling that the new VA examiner in essence appears to have merely copied the February 2013 VA examiner's opinion regarding the Federal Register and provided no analysis as to why the findings therein are or are not applicable in the Veteran's case despite the Board's request to do so. Significantly, the Federal Register states that a presumption of hypertension due to PTSD has been recognized by the VA in some cases. The August 2013 VA examiner's lack of any discussion of the Federal Register aside from just simply acknowledging it, is a failure to comply with the Board's May 2013 remand. See Stegall v. West, 11 Vet. App. 268 (1998), (holding that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders). Moreover, regarding the NIH article cited by the Veteran in the May 2012 brief, it is still unclear that the article was reviewed and considered. The Board notes that the August 2013 VA examiner stated that May 2012 and December 2012 articles had been reviewed. From a review of the claim file, it is unclear what these articles are. The Veteran's VBMS file does contain a number of articles which were uploaded in December 2012. However, none of these articles are the NIH article cited in the May 2012 brief. To the extent that the examiner may be referring to the NIH article when stating he reviewed the May 2012 article, the Board notes that the NIH article discusses relationships between diabetes mellitus and arteriosclerosis. No specific discussion, as was requested, regarding the article was provided. Moreover, the RO was requested to provide a copy of this article to the examiner; however, VBMS does not contain a copy of the article. Given the lack of discussion of the contents of this article and the fact that the article has not been made part of the Veteran's electronic file, the Board cannot be sure that the article was considered and that its remand orders were complied with. Finally, the Board notes that in the June 2012 remand, the Board requested that the VA examiner provide an opinion as to whether hypertension is related to service. The Board has reviewed all of the VA examinations and opinions obtained after the June 2012 remand and none of the opinions address whether hypertension was incurred in service or is otherwise related to service. This opinion must be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must upload a copy of the NIH article cited by the Veteran's representative in the May 2012 brief and found in the following hyperlink: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1562315/?page=1, to the Veteran's VBMS file. 2. After, the above development has been conducted, the RO/AMC should forward the file to an appropriate VA examiner and ask that the examiner provide an opinion regarding the relationship between the Veteran's hypertension and his service connected PTSD and/or diabetes mellitus. The examiner is specifically asked to discuss following as they pertain to the Veteran's situation: (a) The NIH article cited in the May 2012 brief submitted by the Veteran's representative which discusses a relationship between diabetes mellitus and arteriosclerosis; and (b) The Federal Register statement of June 28, 2005, 70 F.R. 37040. After the examiner has reviewed the claim file and the articles noted above, he or she is to render and opinion as to whether it is at least as likely as not (meaning likelihood of at least 50%) that any hypertension condition: (a) was caused by or aggravated by the service connected PTSD and/or diabetes mellitus; (b) had its onset in service; or (c) is otherwise related to service. The examiner should be advised that aggravation is defined as an increase in severity beyond the natural progression of a disorder, as distinguished from temporary or intermittent flare-ups that do not result in a worsening of the underlying disorder. If the Veteran's hypertension is found to have been aggravated by his PTSD, please ask the examiner to provide, to the extent possible, a baseline level of severity. A clear rationale for all opinions should be provided. Again, the examiner must specifically discuss the applicability of the findings in the NIH article and the Federal Register to the Veteran's claim. A discussion of how the findings contained therein are either applicable or inapplicable in the Veteran's claim is required. An opinion stating that no discussion is needed is not an acceptable opinion and will not comply with this remand's request. 3. Then, readjudicate the Veteran's claim. If his claim remains denied, he should be provided with a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned 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. 2012). _________________________________________________ DAVID L. WIGHT 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).