Citation Nr: 1340893	
Decision Date: 12/11/13    Archive Date: 12/20/13

DOCKET NO.  10-27 268	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon



THE ISSUE

Entitlement to service connection for hypertension also claimed as secondary to the service connected diabetes mellitus type II.  



REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States



ATTORNEY FOR THE BOARD

T. S. Willie, Counsel



INTRODUCTION

The Veteran served on active duty from May 1968 to May 1974.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.

This case was remanded by the Board in August 2013 for further development.  While undergoing remand development, the case was converted to the Veterans Benefits Management System (VBMS) electronic folder.  There are also pertinent documents in the Virtual VA electronic folder.

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 Veteran appeals the denial of service connection for hypertension.  When this issue was before the Board in August 2013 it was determined that further development was needed to include obtaining a VA etiology opinion from the examiner who conducted the May 2012 VA examination.  The VA then instructed that the cardiologist should render an etiology opinion as to whether the Veteran's hypertension was caused by service or caused or permanently aggravated by his service connected posttraumatic stress disorder (PTSD) or diabetes mellitus. 

A VA opinion was rendered in September 2013 by the examiner who conducted the May 2012 VA examination.  The Board notes, however, that the examiner's opinion continues to be conflicting as discussed in detail in the prior remand.  Clearly, this VA examiner is unable to render an adequate opinion on this matter.  Furthermore, when addressing the conflicting medical evidence of record, the examiner stated that she reviewed the conflicting medical evidence.  She then remarked " this general medical examiner is not a cardiologist, and never claimed to be."  On remand, a cardiologist should be consulted and render the requested opinion.  

The Court has held that a remand by either the Court or the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

Accordingly, the case is REMANDED for the following action:

1.  Obtain an opinion from a VA cardiologist.  An additional physical examination of the Veteran is not required unless specifically requested by the reviewing cardiologist.  The cardiologist is to be provided access to the Veteran's Virtual VA and VBMS file.  Following a review of all of those documents, the cardiologist is to opine whether it is at least as likely as not, i.e., is there a 50/50 or greater chance, that the Veteran's hypertension was caused by service, or caused or permanently aggravated by his service connected PTSD and/or diabetes mellitus.  When rendering the opinion, the examiner must address the Veteran's contentions and attempt to reconcile the prior VA opinions.  The cardiologist must offer a fully reasoned rationale for all opinions offered.

2.  Upon completion of the above requested development and any additional development deemed appropriate, the RO should readjudicate the remanded issue.  If any benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case.  An appropriate period of time should be allowed for response.

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).


_________________________________________________
MICHAEL D. LYON 
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).