Citation Nr: 1512328 Decision Date: 03/23/15 Archive Date: 04/01/15 DOCKET NO. 06-05 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. R. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from March 1982 to March 1986, and from February 2003 to January 2005, with additional Air Force National Guard service. This matter comes to the Board of Veterans' Appeals (Board) from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This case has been remanded in July 2011, November 2012, and August 2013 for additional development. It is again before the Board for further appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As noted above, this case has been remanded several times in order that additional development could be accomplished. Unfortunately, the Board finds that further remand is necessary. Initially, the case was remanded in July 2007 in order to provide the Veteran with a VA examination to determine when hypertension first manifested. Specifically, the examiner was asked to provide an opinion as to whether hypertension was shown during the Veteran's first or second period of active service or within one year of his discharge from either period of active duty, and if not, the examiner was asked to determine whether hypertension undebatably preexisted the Veteran's second entry into service from February 2003 to January 2005, and was aggravated during that time. In its November 2012 remand, the Board noted that an August 2011 VA examiner opined that the Veteran's hypertension was not manifest from March 1982 to March 1986, or within a year of discharge from that period of service. The examiner, however, opined that hypertension preexisted the Veteran's second period of active service from February 2003 to January 2005, and determined that hypertension was less likely as not (less than 50 percent probability) incurred in or caused by service or an event therein. The examiner failed to address whether the Veteran's preexisting hypertension was aggravated/permanently increased in disability beyond the natural progression of the disease during his service from February 2003 to January 2005. As such, the Board again remanded the case in November 2012, in order for the VA examiner who provided the August 2011 VA examination to provide an addendum opinion as to whether the Veteran's hypertension preexisted his period of service from February 2003 to January 2005 and, if so, whether any aggravation was due to the natural progress of the disease. The Board noted that, if the examiner who performed the August 2011 VA examination was no longer available or felt that another examination was necessary in order to provide the requested opinion, then an examination should be scheduled. Following the Board's November 2012 remand, an addendum opinion was obtained in February 2013, which was amended again in June 2013. However, each was obtained from J.L., FNP, BC, and it does not appear that the AMC/RO attempted to obtain an addendum opinion from K.Z.R.-the VA examiner who provided the August 2011 opinion-as directed in the Board's remand. The Agency of Original Jurisdiction's (AOJ) actions did not comply with the Board's remand directives. Specifically, the Board had instructed that an addendum opinion be obtained by the August 2011 examiner or, if that examiner was not available, to provide the Veteran with a new examination from a different VA examiner. The option of obtaining an addendum opinion from an examiner who had not examined the Veteran was not included in the Board's instructions. In addition, the Board noted that, in her February 2013 opinion, J.L. indicated that the Veteran's hypertension was at least as likely as not due to or the result of the Veteran's service-connected condition. However, the rationale provided for the opinion was unclear, but the Board noted that it appeared that she assumed that pre-hypertension was a service-connected condition that led to hypertension. As such, the Board remanded the case again in August 2013 to obtain an opinion as to whether the Veteran's hypertension preexisted active duty and was aggravated during active duty, and whether hypertension was secondary to a service-connected disability. The opinion was to be provided by K.Z.R.-the VA examiner who provided the August 2011 opinion-unless unavailable. If this examiner was unavailable, an examination was to be conducted by another examiner. The Veteran was provided a VA examination in April 2014 by T.E., D.O. The examiner found that she could not provide an opinion as to whether the Veteran's hypertension was aggravated during active duty or secondary to a service-connected disability without resorting to mere speculation due to the etiology of the Veteran's hypertension being "possibly multifactorial including stress, worsening heart condition, worsening kidney condition, or genetic disposition." When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the April 2014 in inadequate, for the following reasons. In its August 2013 remand, the Board instructed that the examiner provide an opinion as to whether it is it at least as likely as not that the Veteran's preexisting hypertension was aggravated during his period of service from February 2003 to January 2005. The examiner provided an opinion with a rationale addressing whether the Veteran's hypertension was caused by service. In addition, it is still somewhat unclear why an opinion could not be offered in this case. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). As such, another opinion should be obtained. If the examiner who provided the April 2011 examination is not available, please note this in the claims file. Accordingly, the case is REMANDED for the following action: 1. Forward the complete claims folder to the VA examiner who provided the August 2011 VA examination and opinion report, if available. If this examiner is not available, please note this in the claims file, and obtain an opinion from a similarly qualified examiner. The claims file (including paper records and/or records in the Virtual VA and VBMS systems) and this remand must be reviewed by the examiner; consideration of such should be reflected in the completed examination report or in an addendum. The examiner is asked to provide an addendum to specifically address the following questions: a) Whether the current hypertension disorder preexisted his period of service from February 2003 to January 2005; i) If so, whether it is it at least as likely as not (a 50 percent probability or greater) that the disorder was aggravated (permanently increased in severity) during that period of service. (Please note that aggravation need not be caused by service. Rather, the issue is whether the Veteran's hypertension permanently increased in severity during his time on active duty service); ii) If so, was the increase in severity clearly and unmistakably (obviously manifestly or undebatably) due to the natural progress of the disease. b) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's hypertension has been caused (in whole or in part) by any service-connected disability; and c) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's hypertension has been aggravated (has undergone a permanent, measurable increase in its severity as shown by comparing the current disability to medical evidence created prior to any aggravation) by his service-connected disabilities. If the Veteran's current hypertension has been aggravated by a service-connected disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. In providing the opinion, the examiner should consider all service-connected disabilities, which include (1) posttraumatic stress disorder (PTSD), (2) obstructive sleep apnea, (3) neural foraminal narrowing at L5/S1 secondary to mild disc protrusion and facet arthrosis with right sided lumbosacral radiculopathy symptoms, (4) disc protrusion, C5/C6, (5) arthritis of the left ankle and (6) impairment of the sciatic nerve of the right lower extremity associated with neural foraminal narrowing at L5/S1 secondary to mild disc protrusion and facet arthrosis with right sided lumbosacral radiculopathy symptoms. The examiner should specifically address the notation in the previous opinion that the Veteran's hypertension is possibly related to stress, as he is service-connected for PTSD. A full and complete rationale for all opinions expressed must be provided. If the examiner determines that he/she cannot provide an opinion on the issue at hand 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 rendered 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. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 2. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. 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 2014). _________________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).