Citation Nr: 1408309 Decision Date: 02/26/14 Archive Date: 03/07/14 DOCKET NO. 08-28 540 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hypertension, claimed as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran's claim. In Board decisions dated September 2010, November 2011, and September 2012, the claim was remanded for further evidentiary development. The VA Appeals Management Center (AMC) most recently continued the previous denial in an April 2013 supplemental statement of the case (SSOC). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. The appeal is once again REMANDED to the RO via the AMC, in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND Regrettably, a remand is necessary for further evidentiary development of the Veteran's claim on appeal. The Board is cognizant that the Veteran's case has been in adjudicative status for several years and was previously the subject of multiple remands. Consequently, the Board wishes to assure the Veteran that it would not be remanding this case again unless it was essential for a full and fair adjudication of his claim. Here, the Veteran asserts entitlement to service connection for hypertension as secondary to service-connected PTSD. See the Veteran's claim dated September 2007. As indicated above, the Veteran's claim was previously remanded three times in order to obtain a competent, probative, and thoroughly explained medical opinion addressing the question of whether the Veteran's currently diagnosed hypertension is caused or aggravated by his service-connected PTSD. Most recently, in the September 2012 remand decision, the Board instructed the AMC to "[s]chedule the Veteran for a VA examination by an appropriate VA physician to determine whether hypertension is secondary to or has been aggravated by the service-connected PTSD." (Emphasis as in original). In compliance with the remand instructions, a November 2012 VA medical opinion was obtained from a physician in internal medicine who provided detailed rationale to support her conclusion that the Veteran's hypertension is not caused or aggravated beyond the natural cause of the disease process by the service-connected PTSD. However, an April 2013 addendum opinion was subsequently obtained from Dr. L. T.-C., who opined, "[i]t is AS LEAST AS LIKELY AS NOT that the Veteran's use of Wellbutrin is proximately due to (aggravates) his hypertension." She continued, "[h]owever, it is less likely than not that the aggravation was beyond the natural progress because the Veteran entered the VA system for medical and mental healthcare with uncontrolled hypertension and it remains elevated." Dr. L. T.-C. subsequently provided additional rationale to support her conclusion. Crucially, the Board notes that the April 2013 addendum opinion was obtained from Dr. L. T.-C., who is a podiatrist. To this end, the Board notes that there is no evidence that this podiatrist is qualified in matters related to pharmacology or internal medicine. The Board thus finds that the April 2013 addendum opinion from Dr. L. T.-C. is inadequate and, therefore, will not be used in the analysis of this claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). By again failing to ensure that the Veteran was afforded an adequate examination, the AMC did not substantially comply with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). AMC compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance. Id. As such, a remand for corrective action is required. Thus, in order to satisfy VA's duty to assist, the Board finds that another remand is warranted in order to obtain an adequate opinion from an appropriately qualified VA examiner. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). As to the question of aggravation, the Board notes that 38 C.F.R. § 3.310 places a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. Upon remand, the examiner must therefore determine whether Veteran's service-connected PTSD (to include the medications prescribed therefore) has made chronically worse (i.e., underwent a permanent increase in the underlying pathology beyond the natural progression) the Veteran's hypertension. Accordingly, the case is REMANDED for the following action: 1. VBA should refer the VA claims file to the physician who provided the November 2012 VA opinion, if she is unavailable the claims file should be referred to a physician with appropriate expertise. The Veteran does not need to be examined unless deemed necessary for an adequate opinion. The examiner is requested to review the claims file in its entirety including all VA and private treatment records. Then, the examiner should respond to the following: a. Is it at least as likely as not that the Veteran's service-connected PTSD (to include the medications prescribed therefore) has caused or made chronically worse (aggravated beyond the natural course of the disease process) his currently diagnosed hypertension? b. If the examiner finds that the service-connected PTSD has not caused the hypertension but has made it worse, the examiner should comment on when the onset of "aggravation" took place and whether the claims file contains sufficient medical evidence to establish a baseline of the level of severity of the claimed hypertension. If a baseline is established, the examiner should comment on how much the hypertension has worsened in severity as a result of the service-connected PTSD (to include the medications prescribed therefore), if at all, from the time of the baseline to the current level of severity. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. The AOJ should ensure that any additional development suggested by the examiner should be undertaken so that a definite opinion can be obtained. 2. Thereafter, readjudicate the issue remaining on appeal. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a SSOC and an appropriate period of time for response before the case is returned to the Board. The Veteran 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 remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).