Citation Nr: 1751983 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 11-07 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder other than post-traumatic stress disorder (PTSD), to include as secondary to a service-connected disability. 2. Entitlement to service connection for hypertension, to include as due to herbicide exposure, and as secondary to a service-connected disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD C. O'Donnell, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1969 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. This matter was previously remanded by the Board in January 2016. The Board denied the claims on appeal in a July 2016 decision. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In May 2017, the Court vacated the Board decision and remanded the Veteran's claim for action consistent with the directives of a joint motion for remand (JMR). This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND While the Board sincerely regrets additional delay of adjudication of the Veteran's claims, the Board finds that the claims must again be remanded for additional development. In that regard, a remand is required to obtain adequate opinions consistent with the May 2017 JMR. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) ("[O]nce the Secretary undertakes the effort to provide an examination . . . he must provide an adequate one."); see Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance would be required, not strict compliance). As noted above, the Board denied the Veteran's claim in July 2016. However, as noted in the May 2017 JMR, the Board's July 2016 denial relied on inadequate VA examinations. Based on the foregoing, the Board will remand this matter for new VA opinions. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination with an appropriate psychologist or psychiatrist to determine the nature and etiology of any current acquired psychiatric disorder that may be present, other than PTSD. The examiner must review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements, and it should be confirmed that such records were available for review. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should provide an opinion addressing the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that any psychiatric disorders, other than PTSD, to include generalized anxiety disorder and depressive disorder, see February 2016 VA examination report; November 2010 initial evaluation for PTSD, are proximately due to or the result of the Veteran's service-connected diabetes mellitus, nonproliferative diabetic retinopathy with early bilateral cataracts, or right and left extremity peripheral neuropathy. (b) Whether it is at least as likely as not (50 percent probability or greater) that any psychiatric disorder, other than PTSD, to include generalized anxiety disorder and depressive disorder, see February 2016 VA examination report; November 2010 initial evaluation for PTSD, was aggravated by any of the Veteran's service-connected disabilities, to include diabetes mellitus, nonproliferative diabetic retinopathy with early bilateral cataracts, or right and left extremity peripheral neuropathy. As per the terms of the May 2017 JMR, the examiner should also specifically opine as to whether the Veteran's generalized anxiety disorder, as noted on examination in February 2016, is aggravated by his service-connected disabilities. In so opining, the examiner should offer a fully reasoned explanation on whether the severity of the Veteran's generalized anxiety disorder is influenced by his service-connected disabilities. If any previously diagnosed disorder is no longer present, the examiner must provide an explanation. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Schedule the Veteran for a VA hypertension examination to determine the nature and etiology of the Veteran's claimed hypertension. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, lay statements, and any medical studies submitted by the Veteran and his representative. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine as to the following: Whether it is at least as likely as not (50 percent probability or greater) the claimed hypertension was caused or aggravated by the Veteran's service-connected disabilities, to include diabetes mellitus, nonproliferative diabetic retinopathy with early bilateral cataracts, or right and left extremity peripheral neuropathy, and to include any medication the Veteran takes with regard to any of his service-connected disabilities. Specifically, the examiner should address if there is any relationship between the Veteran's prescribed diabetes medication, metformin, and his hypertension. To that end, please address the August 2013 VA primary care record indicating that the Veteran's blood pressure was elevated over weeks prior to metformin initiation but once he started the metformin his blood pressure was noted to be under control. See August 2013 VA Primary Care Note The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. In the event that the Veteran does not report for the any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the Veteran's last known address and to his representative, if applicable. It should also be indicated whether any notice sent was returned as undeliverable. 4. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs to include any necessary development as to the Veteran's claims, the case should be readjudicated by the AOJ on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 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). _________________________________________________ ANTHONY C. SCIRÉ, JR. 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) (2017).