Citation Nr: 1616353 Decision Date: 04/25/16 Archive Date: 05/26/16 DOCKET NO. 08-28 980 DATE APR 25 2016 On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to migraines and/or an acquired psychiatric disorder, and/or as due to exposure to Gulf War environmental hazards. 2. Entitlement to service connection for migraines, to include as secondary to hypertension, and/or as due to exposure to Gulf War environmental hazards. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Lavan, Associate Counsel INTRODUCTION The Veteran had active service from April 1990 to August 1990, April 1992 to June 1992, May 1994 to September 1994, May 1996 to June 1996, August 1997 to September 1997, February 1998 to March 1998, September 2001 to October 2001, January 2003 to February 2003, April 2004 to June 2004, and December 2004 to March 2005. This matter comes before the Board of Veterans' Appeals (Board) from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran testified before a Decision Review Officer (ORO) in December 2008. A copy of the transcript is associated with the file. This matter came before the Board in August 2015, at which time the Board remanded these issues for additional development, to include addendum medical opinions. As discussed below, the Board finds that another remand is necessary. Stegall v. West, 11 Vet. App. 268 (1998). This matter is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND This matter must be remanded to obtain adequate medical opinions that comply with the August 2015 Board remand. A Court or Board remand confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Id. Additionally, where VA affords the Veteran an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An adequate examination and medical opinion addresses the appropriate theories of entitlement and provides a supporting rationale for any medical opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 123-25 (2007). The Veteran contended before the Board in October 2008 that she was diagnosed with hypertension in 1992 and it was well-regulated with medication until September 11, 2001 at which point it destabilized. Additionally, the Veteran contends that her migraines aggravate and are aggravated by her hypertension. In her claim filed in November 2006, the Veteran alleged that her migraines were also related to asbestos exposure in August 1997 and April 2004. The Veteran's enlistment examination from February 1990 shows that her initial blood pressure reading was 154/112. The examination indicates more blood pressure tests were taken, the results of which were: 140/88; 140/98; and 140/90. The examiner indicated "outside BP ok." Migraine headaches were not noted. In May 1990, the Veteran's blood pressure was 130/80 and her present medications did not include antihypertensive medication. The Veteran underwent a five day blood pressure check in April 1992, the result of which were: 140/102; 142/82; 140/94; 140/100; and 140/90. Gynecological records from April 1992 show that the Veteran noted migraine headaches under past or present medical issues. Service treatment records from March 1993 states that the Veteran took antihypertensive medication in the past but her blood pressure was normal at the time. The Veteran's service entrance records from January 1994 show that the Veteran checked yes for a history of high or low blood pressure and occasional migraines were noted. VA medical records from September 2014 show that the Veteran reported experiencing migraines during childhood. In February 2014, the Board remanded the Veteran's service connections claims for hypertension and migraines for VA examinations and opinions. The Veteran was afforded an examination in May 2014 and opinions were issued in June 2014. In August 2015, the Board found that the June 2014 opinions were inadequate and remanded the matter for additional medical opinions. The Board instructed the VA examiner to determine whether there is clear and unmistakable evidence that the Veteran's hypertension and migraines preexisted service and, if so, whether they were aggravated by service. If the examiner found that the disabilities did not preexist service, the examiner was instructed to determine whether the Veteran's disabilities were related to service directly or by secondary means. The same examiner issued addendum medical opinions in November 2015. The examiner's opinion regarding hypertension, however, is predicated on an inaccurate factual history and, thus, the claim must be remanded. Specifically, the examiner concluded that the Veteran's hypertension preexisted her active service because medical documents show that the Veteran was being treated for hypertension since 1994, before she began active service. The Veteran, however, had active service prior to 1994. Additionally, the examiner's opinion regarding migraines must be remanded for a lack of supporting rationale. Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims folder to the examiner who issued the November 2015 medical opinions for addendum opinions. The examiner is requested again to review the claims folder, to include this remand. Unless the examiner finds that a new examination is required, the Veteran need not be examined again. Following review of the claims file the examiner should respond to the following requests: a) Preexisting Conditions: The examiner should provide an opinion on the following: 1. Whether clear and unmistakable evidence demonstrates that the Veteran entered service with hypertension. The Veteran had active service from April 1990 to August 1990, April 1992 to June 1992, May 1994 to September 1994, May 1996 to June 1996, August 1997 to September 1997, February 1998 to March 1998, September 2001 to October 2001, January 2003 to February 2003, April 2004 to June 2004, and December 2004 to March 2005. Address the Veteran's blood pressure results reported on her enlistment examination from February 1990 and the examiner's notations regarding the Veteran's blood pressure. 2. If the Veteran's hypertension preexisted service, whether clear and unmistakable evidence demonstrates that the Veteran's hypertension disability was not aggravated by service. Provide a rationale for this determination. 3. Whether clear and unmistakable evidence demonstrates that the Veteran entered service with migraines. 4. If the Veteran's migraines preexisted service, whether clear and unmistakable evidence demonstrates that the Veteran's migraines were not aggravated by service. Provide a rationale for this determination. b) Direct Service Connection: If the examiner instead determines that the hypertension and/or migraines did not preexist service, the examiner should opine whether: 1. It is as least likely as not (a 50 percent probability or greater) that the Veteran's hypertension had its onset in service or is otherwise medically related to an in-service injury or disease, to include exposure to Gulf War environmental hazards. 2. It is as least likely as not (a 50 percent probability or greater) that the Veteran's migraines had their onset in service or is otherwise medically related to an in-service injury or disease, to include exposure to Gulf War environmental hazards. c) Secondary Service Connection: If the examiner determines that the hypertension and/or migraines did not onset in service, the examiner should provide opinions as to the following: 1. Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's hypertension is caused by her service-connected acquired psychiatric disability. 2. Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's hypertension is aggravated by her service-connected acquired psychiatric disability. 3. Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's hypertension is caused by her migraines. 4. Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's hypertension is aggravated by her migraines. Address the Veteran's contentions that her migraines affect her hypertension. 5. Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's migraines are caused by her hypertension. 6. Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's migraines are aggravated by her hypertension. Address the Veteran's contentions that her hypertension causes migraines. 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. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 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). MICHELLE L. KANE 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.l100(b) (2015).