Citation Nr: 1817110 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 06-39 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for hypertension, including as secondary to a service-connected disability. 2. Entitlement to service connection for psychiatric disorder, including as secondary to a service-connected disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel INTRODUCTION The Veteran served in the United States Army from August 1965 to June 1967 and from June 1986 to September 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified a hearing before a Veterans Law Judge (VLJ) in August 2012 and a copy of the transcript is of record. The VLJ who held the hearing is no longer employed by the Board. The law requires that the VLJ who conducted the hearing participate in making the final determination of the claims. 38 U.S.C. § 7107(c) (2012); 38 C.F.R. § 20.707 (2017). By a January 2018 letter, the Veteran was given an opportunity to request another hearing within 30 days. The Veteran did not respond to the letter within 30 days, and thus, the Board assumes the Veteran did not want a new hearing. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board remanded the case in August 2012 for the Veteran to receive a new VA examination. VA has a duty to substantially comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes the September 2017 Supplemental Statement of the Case (SSOC) stated that the Veteran's VA examination was cancelled because the Veteran submitted a letter withdrawing his appeal. The Board notes there is nothing in the claims file to indicate the Veteran's written consent withdrawing the appeal. In a July 2017 letter to the Veteran, the RO informed him that his examinations were canceled and that it was noted that he no longer wished to pursue his appeal. The RO informed him that he had to submit his withdrawal request in writing, and that if the RO did not receive a response within 30 days, it would continue to process the appeal. In an August 2017 letter, the RO again informed the Veteran that withdrawals had to be submitted in writing. No written statement regarding withdrawal of the appeal was ever submitted by the Veteran. Additionally, in a November 2017 brief the Veteran's representative stated the Veteran did not withdraw his appeal. Thus, a remand is necessary to comply with the Board's August 2012 directives and afford the Veteran a VA examination. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician for his hypertension. The entire claims file and copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. Although and independent review of the claims file is required, the Board calls the examiner's attention to the following: a. February 2009 VA examination addressing questions of hypertension and its relation to diabetes mellitus. b. Veteran's lay assertions relevant to his claimed hypertension. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension: a. Began during active service, is related to an incident of service, or began within one year after discharge from active service. b. Was proximately due to or the result of his service-connected diabetes mellitus. c. Was aggravated beyond its natural progression by his service-connected diabetes mellitus. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Schedule the Veteran for an examination with a qualified psychiatrist or psychologist, other than the one who conducted the December 2007 VA examination. The entire claims file and copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must determine what psychiatric diagnoses the Veteran has under the criteria set forth in the DSM-IV, as required by VA regulations which govern this case. The Board found the December 2007 VA examination was inadequate as the examiner attributed the diagnosed adjustment disorder to the Veteran's non-service-connected respiratory disorder instead of the Veteran's multiple service-connected disabilities. Furthermore, the December VA examiner did not address whether the Veteran's shortness of breath (a reported symptom of his psychiatric disorder) may be attributable to his service connected coronary artery disease, thus allowing for secondary service connection for a psychiatric disorder. The examiner must provide an opinion as to whether it is at least as likely as not that for any psychiatric disorder found, the disorder: a. Began during active service, or is related to an incident of service. b. Was proximately due to or the result of any service-connected disability. c. Was aggravated beyond its natural progression by any service-connected disability. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. 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. §§ 5109B, 7112 (2012). _________________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).