Citation Nr: 1418518 Decision Date: 04/25/14 Archive Date: 05/02/14 DOCKET NO. 09-06 802 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for hypertension, claimed as secondary to service-connected diabetes mellitus, type II, with hyperlipidemia and bilateral iliac stenosis, status-post stenting. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to February 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decisions of the St. Paul, Minnesota, Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this claim in March 2012 so that another VA medical opinion could be provided to address whether the Veteran's hypertension was caused or aggravated by his service-connected diabetes mellitus, type II, with hyperlipidemia and bilateral iliac stenosis, status-post stenting. The case is now returned for appellate review. Unfortunately for the reasons described below, once again, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board previously remanded this claim so that a VA examination and opinion could be provided to address whether the Veteran's hypertension was caused or aggravated by his diabetes, with hyperlipidemia and bilateral iliac stenosis, status-post stenting. An opinion was provided in August 2012 finding that the Veteran's diabetes mellitus, type I, with hyperlipidemia and bilateral iliac stenosis, status-post stenting did not cause or aggravate the Veteran's hypertension. A rationale was provided for why the diabetes did not cause or aggravate the hypertension; however, a rationale was not provided as to why the hyperlipidemia and bilateral iliac stenosis, status-post stenting did not cause or aggravate the Veteran's hypertension, other than to note that there was no plausible basis. For this reason the opinion provided 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. The Veteran's claims folder should be returned to the examiner who conducted the August 2012 VA hypertension examination for an addendum medical opinion. If the August 2012 examiner is no longer available, or if this examiner determines that another examination would be helpful, the Veteran should be scheduled for a new C&P examination. After a complete review of the claims file, the examiner is asked to opine: a). whether it is at least as likely as not (i.e., at least a 50 percent degree of probability) that the Veteran's hypertension was caused by, OR alternatively, b). aggravated by the Veteran's diabetes mellitus, hyperlipidemia, and/or bilateral iliac stenosis, status-post stenting. The examiner should also comment on any effect that medication taken for a service-connected disability has on the Veteran's hypertension. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability, and does not include an increase in the disorder which is due to the natural progress of the condition. If the examiner cannot answer the above question without resorting to mere speculation, the examiner should state why this is so. Any opinion should be reconciled with all evidence of record, to include the April 2008 and August 2012 VA examination reports. A complete rationale for any opinions offered must be provided. 3. Thereafter, readjudicate the service connection claim for hypertension. In particular, review the newly submitted evidence to include a prescription note dated in September 2009 from Dr. K., M.D., which was apparently associated with the claims file following issuance of the February 2010 Supplemental Statement of the Case. If the benefit sought on appeal is not granted in full, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. 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). _________________________________________________ K. PARAKKAL 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).