Citation Nr: 1749352 Decision Date: 11/01/17 Archive Date: 11/13/17 DOCKET NO. 13-01 500 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an initial disability rating in excess of 70 percent for a psychiatric disorder prior to August 20, 2016. 2. Entitlement to service connection for hypertension, to include as secondary to a service-connected psychiatric disorder. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In March 2015, the Board remanded the issues on appeal for further development. In August 2016, the RO granted the Veteran's TDIU claim, effective December 15, 2011, and assigned the Veteran a 100 percent schedular rating for his service-connected psychiatric disorder, effective August 20, 2016. Given that the Veteran's TDIU claim was separately adjudicated and the Veteran has not submitted a notice of disagreement to the effective date, it is no longer on appeal. See Tyrues v. Shinseki, 23 Vet.App. 166, 176 (2009). Additionally, given that the Veteran has been assigned a 100 percent schedular rating for his service-connected psychiatric disorder for the period since August 20, 2016, this is a full grant of the benefits sought on appeal, and this part of the claim is no longer on appeal. Cf. AB v. Brown, 6 Vet. App. 35 (1993). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran was afforded a VA examination in May 2014 to assess the nature and severity of his service-connected psychiatric disability. However, this examination was not considered by the RO in its August 2016 supplemental statement of the case (SSOC), and the Veteran did not waive initial RO consideration of this evidence. The Board notes that while the Veteran was granted a 100 percent disability rating as of August 20, 2016, the RO must nevertheless consider the May 2014 examination in determining whether or not a rating in excess of 70 percent is warranted prior to August 20, 2016. Therefore, a remand is required in order for the RO to consider the evidence and for the issuance of an appropriate SSOC. See 38 C.F.R. § 20.1304(c). Further, with respect to the Veteran's service connection hypertension claim, the Board finds that additional development is needed as VA did not substantially comply with the March 2015 Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, pursuant to the March 2015 remand, the Veteran was provided with an addendum VA opinion in August 2016 regarding the etiology of his hypertension. However, the Board finds that VA opinion to be incomplete because it did not address whether or not the Veteran's hypertension was aggravated by his service-connected psychiatric disorder. Instead, the VA examiner only opined that the Veteran's hypertension was not caused by his service-connected psychiatric disorder. As such, a remand is required for an addendum opinion to address the issue of aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-141 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). Accordingly, the case is REMANDED for the following action: 1. The AOJ should undertake any additional action it deems necessary in order to properly adjudicate and determine if the Veteran is entitled to a rating in excess of 70 percent prior to August 20, 2016 for a psychiatric disorder. 2. The AOJ should return the claims file to the VA examiner who provided the August 2016 VA examination (or a comparably qualified individual if that examiner is no longer available) to obtain an addendum opinion. The claims file must be reviewed, including the new records and medical research provided by the Veteran, and such review should be noted in the addendum opinion. After reviewing the claims file, the examiner must determine if it is at least as likely as not (a fifty percent probability or greater) that the Veteran's hypertension has been aggravated (permanently worsened beyond the natural progress of the disorder) by the Veteran's service-connected psychiatric disorder. If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to the aggravation of hypertension by the service-connected psychiatric disorder. If the examiner cannot provide the requested opinion without resorting to mere speculation, he or she should provide a complete explanation stating why this is so. In so doing, the examiner should 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). 3. If the claims are not fully granted, a SSOC should be issued, and the claims file should be returned to the Board for further appellate consideration. 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). ______________________________________________ B.T. KNOPE 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) (2016).