Citation Nr: 18144903 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 04-21 126 DATE: October 25, 2018 REMANDED Entitlement to service connection for hypertension, including as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1983 to March 1992. He appealed to the Board of Veterans’ Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2008, the Veteran testified at a hearing before the undersigned; however, at that time, the claims on appeal did not include entitlement to service connection for hypertension. In connection with this issue, he had requested and was scheduled for a hearing in April 2014. But as he failed to report for that hearing, and did not offer any good-cause justification or explanation for his absence, the Board considered his request for a hearing on this claim to have been withdrawn and proceeded to considering the claim based on the evidence of record. See 38 C.F.R. § 20.702(d). In August 2014, the Board reopened this previously-denied claim based on the receipt of the required new and material evidence. 38 C.F.R. § 3.156 (2016). But rather than immediately readjudicating this claim on its underlying merits, on a de novo basis, the Board instead remanded this claim to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. This additional development included especially affording the Veteran a VA compensation examination for a needed medical nexus opinion addressing whether his service-connected disabilities either caused or are aggravating his hypertension. See 38 C.F.R. § 3.310(a) and (b). Subsequently, in a January 2017 decision, the Board denied entitlement to service connection for hypertension. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In May 2018, the Court granted a Joint Motion for Remand (JMR), vacating the Board’s January 2017 decision and remanded for further consideration consistent with the terms of the JMR. The parties to the JMR agreed that the October 2015 VA examination opinion relied upon by the Board in the January 2017 decision was not adequate. In the JMR the parties agreed that in addressing whether Veteran’s asthma caused or aggravated his hypertension, the 2015 examiner quoted from medical literature on asthma and hypertension. The parties agreed that the examiner did not address how the information in this medical literature applied to the Veteran’s specific case. The parties further agreed that although the 2015 examiner opined that the Veteran’s depression medications did not cause or aggravate the Veteran’s hypertension, the examiner did not opine as to whether the Veteran’s depression itself caused or aggravated the Veteran’s hypertension. The parties agreed that remand was required for VA to procure a new medical opinion that adequately addresses whether the Veteran’s asthma and/or depression caused or aggravated his hypertension. As such, the claim is remanded for a new medical opinion. Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand). The matter is REMANDED for the following action: Forward the claims file to an appropriate VA medical examiner to obtain a medical opinion regarding the etiology of his current hypertension disability. The claims file, including a copy of this remand, must be made available to the examiner, and the examiner must indicate in his/her report that the file was reviewed. If the examiner determines that the opinions cannot be provided without an examination, the Veteran should be scheduled for an examination. The examiner must provide an opinion as to the likelihood (likely, as likely as not, or unlikely) that the Veteran's hypertension is proximately due to, or the result of, the physical impairment associated with his service-connected disabilities (depression, migraine headaches, hydrocele, asthma, ilio-inguinal neuritis). The examiner must also provide a separate opinion as to the likelihood (likely, as likely as not, or unlikely) that the Veteran's hypertension is aggravated by the physical impairment associated with his service-connected disabilities. In forming these opinions, the examiner should comment on the Veteran's assertion that he is unable to exercise as a result of his disabilities, and that this inability to exercise causes or aggravates his hypertension. The examiner must discuss the underlying medical rationale of the opinion, if necessary citing to specific evidence in the file supporting the opinion. If medical literature is relied upon in rendering the opinion, the examiner must address how it applies to the Veteran’s specific case. If an opinion cannot be expressed without resorting to mere speculation, the examiner must discuss why this is the case. That is, they must indicate whether the inability to provide a definitive opinion is because of the need for more information or because the limits of medical knowledge have been exhausted or because of some other reason. So merely saying they cannot comment will not suffice. The term "as likely as not" does not mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The term "aggravated" refers to a chronic or permanent worsening of the underlying condition, as contrasted with mere temporary or intermittent flare-ups of symptoms that resolve and return to the baseline level of disability. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel