Citation Nr: 21003837 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 14-28 785 DATE: January 25, 2021 REMANDED Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1975 to December 1978, and from December 1990 to May 1991. The Veteran also served in the Army National Guard from January 1986 to August 1991. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which denied, in pertinent part, service connection for hypertension. The Board remanded the issue on appeal for additional development in March 2018. However, there has not been substantial compliance with the previous remand directives, and as such, this appeal will be remanded again. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). In August 2017, the Veteran testified at a travel board hearing held before the undersigned Veterans Law Judge (VLJ). A copy of the transcript is of record. In Cook v. Snyder, the United States Court of Appeals for Veterans Claims (Court) found that under 38 U.S.C. § 7107(b), a claimant who received a personal hearing before the Board at an earlier stage of appellate proceedings is entitled to receive, upon request, a Board hearing following this Court’s remand of the same claim. See Cook v. Snyder, 28 Vet. App. 330 (2017). The Court determined a claimant is not limited to only one Board hearing during the entire course of appellate proceedings when an additional hearing is warranted based on the evidence, to more specifically include a change in circumstances, such as new representation or other deficiency. Id. Here, the Veteran, through his representative, requested a second hearing to address unique circumstances in his appeal, and the Board found in favor of the Veteran’s request. A second Board hearing was held by the undersigned VLJ in December 2020, and the transcript of those proceedings is also of record. 1. Entitlement to service connection for hypertension is remanded. In March 2018, the Board remanded the Veteran’s claim for entitlement to service connection for hypertension, calling for a VA examination and opinion for service connection. At the time, the Veteran had not been afforded a VA examination and medical opinion pertinent to his claim of entitlement to service connection for hypertension. See 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA records show an examination and opinion based on the ACE process—acceptable clinical evidence, accomplished on June 1, 2020. This is a process that does not involve the Veteran, but rather only the available records. The Board notes the examination scheduling request, dated May 21, 2020, specifically noted that the “ACE process must not be used to complete the [examination].” There is no indication in the claims file that the RO attempted to reach the Veteran regarding the actual scheduling of an examination, and the Board notes with emphasis that its own remand directive, reflected in the VA examination scheduling request dated on May 21, 2020, was not followed. A previous 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). The Board finds that its remand directives regarding the scheduling of the requisite examination for the Veteran’s hypertension claim were not substantially complied with, and thus the issue must be remanded again. The Board notes the exam scheduling request of May 21, 2020 but finds no evidence of an attempt to contact the Veteran regarding his hypertension examination. There is no evidence of attempts to contact the Veteran, and the Board notes the Veteran received other VA medical care during this period, indicating VA had the ability to contact the Veteran. There is no evidence that the Veteran knew about and then failed to report for his examination, and as such, the Board finds good cause has been shown regarding the Veteran’s lack of attendance at the June 2020 VA ACE examination. See 38 C.F.R. § 3.655 (a) & (b) (2020); Turk v. Peake, 21 Vet. App. 565, 569 (2008). There is a “presumption of regularity” that “supports official acts of public officers” and “allows courts to presume that what appears regular is regular.” Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001); see Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004); Wise v. Shinseki, 26 Vet. App. 517, 525 (2014). The presumption of regularity extends to VA’s ministerial acts of mailing decisional and notice documents to claimants. See, e.g., Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007) (applying the presumption of regularity to the RO’’s mailing of a rating decision); Crain v. Principi, 17 Vet. App. 182, 186 (2003) (RO’s mailing of a Statement of the Case); Schoolman v. West, 12 Vet. App. 307, 310 (1999) (RO’s mailing of an application for dependency and indemnity compensation (DIC)); Davis v. Brown, 7 Vet. App. 298, 300 (1994) (Board’s mailing of a copy of its decision). Here, the Board cannot conclude that the Veteran was properly notified of his VA examination for his hypertension, and thus the presumption of regularity, that public officers are generally presumed to have properly discharged their official duties, cannot be found in this case. Therefore, the Board finds that its previous remand directives were not substantially complied with, and the matter must be remanded back to the RO for a VA examination with the Veteran physically present to consider his claim for entitlement to service connection for hypertension. Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated private or VA medical records identified and authorized for release by the Veteran. 2. After the above is completed, schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature and etiology of the Veteran’s hypertension disability. (The attempts to contact the Veteran in the scheduling of the examination should be fully documented and such documents should be associated with the claims file.) The claims file must be made available to and reviewed by the examiner. After reviewing the claims file and examining the Veteran, the examiner should answer the following question: Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran’s claimed hypertension disability had its onset in service, manifested to a compensable degree within one year of separation from service, or is otherwise related to any in-service disease, event, or injury? A detailed rationale supporting the examiner’s opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Setter, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.