Citation Nr: 21064136 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 12-19 674 DATE: October 19, 2021 REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for headaches is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1978 until his honorable discharge in June 1981 and from March 1983 until his honorable discharge in May 1992, including service in Southwest Asia. The record indicates that he received various decorations, including the Bronze Star Medal, and served in combat. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the Regional Office of the Department of Veterans Affairs (VA). As an initial matter, the Board will summarize the procedural history of this appeal thus far. In December 2016, the Veteran testified before the undersigned at a hearing. A transcript of his testimony has been associated with the claims file. Thereafter, the Board remanded his claims for service connection for hypertension and headaches for additional development. Following this development, the matter returned to the Board in September 2018, at which time it issued a decision and denied his claims. Subsequently, the Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). During the pendency of that appeal, however, the parties entered into a Joint Motion for Partial Remand (JMPR) in August 2019. Pursuant to the terms of the JMPR, the parties agreed that the February 2018 VA examinations for headaches and hypertension were inadequate and that the Board had erred to the extent that it had relied upon these examinations in its decision. Additionally, the parties agreed that the Board failed to address whether 38 C.F.R. § 3.317, with respect to medically unexplained chronic multi-symptom illnesses, applied. As such, the Court vacated the portion of the September 2018 Board decision that denied service connection for hypertension and headaches. Thereafter, the matter returned to the Board. In November 2019, the Board remanded the claims for additional development in accordance with the JMPR. After further evidentiary development, the Regional Office issued an October 2020 supplemental statement of the case that denied the claims once more. The claims were remanded again in May 2021 for new VA examinations. Unfortunately, the opinion that was obtained is inadequate and as such, the Board finds that there has not been substantial compliance with the Board's previous remand directives regarding the issue on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for headaches. Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board may not make a medical determination without relying on independent medical evidence. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The May 2021 remand instructed the Regional Office to obtain a new VA examination for his headache and hypertension claims and to focus on environment exposures in Southwest Asia, secondary service connection, and specific evidence in the file to include lay statements, service treatment records, and a private medical opinion. However, the examiner made conclusory statements without a supporting rationale, and failed to address lay statements and the private medical opinion. Furthermore, the examiner failed to appropriately address the possibility of aggravation under secondary service connection. The private treating physician's opinion to the effect that the Veteran's PTSD caused his hypertension which in turn caused his headaches was not addressed by the VA examiner. The Court of Appeals for Veterans Claims (Court) found that the meaning of the term "aggravation" in cases where service connection is sought on the basis that a pre-service disability was aggravated as a result of service is different than the definition used in cases where a Veteran with an already service-connected disability claims that such disability causes or aggravates a secondary disability. See Ward v. Wilkie, 31 Vet. App. 233, 237 (2019). The Court noted that the two analyses use different underlying law and regulations, 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310 for secondary service connection and 38 U.S.C. § 1153 and 38 C.F.R. § 3.306(a) for service connection based on in service aggravation of a pre-existing condition. Id. The relevant regulation here is 38 C.F.R. § 3.310(b) which was updated in 2006 and states in part, "Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected." 38 C.F.R. § 3.310(b). (emphasis added). The most recent examiner made statements regarding both disabilities that do not illustrate whether there has been "any increase in severity" at all and so the claims must be remanded. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from a new and appropriate VA clinician addressing the nature and etiology of his hypertension and headache disabilities. A complete explanation should be provided for all opinions rendered. After reviewing the claims file in its entirety, including a copy of this remand, the examiner is asked to render opinions on the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension disability began during active service or is related to an in-service injury, event, or disease, including his exposure to environmental agents while serving in the Southwest Asia theater of operations? The examiner is reminded that the Veteran served in combat. (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension disability has been (1) caused by, or (2) aggravated (i.e., any increase in severity which worsened the disability beyond its natural progression) by the service-connected PTSD with depressive disorder and alcohol abuse? (c.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's headache disability began during active service or is related to an in-service injury, event, or disease, including his exposure to environmental agents while serving in the Southwest Asia theater of operations? The examiner is reminded that the Veteran served in combat. (d.) Is it at least as likely as not (50 percent or greater probability) that the headache disability has been (1) caused by, or (2) aggravated (i.e., any increase in severity which worsened the disability beyond its natural progression) by his hypertension or his service-connected PTSD and alcohol abuse? (e.) Does the Veteran's hypertension or his headache disability constitute an "undiagnosed illness" or a "medically unexplained chronic multi-system illness"? A medically unexplained chronic multi-symptom illness is a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Signs or symptoms which may be manifestations of medically unexplained chronic multi-symptom illness include, but are not limited to fatigue, skin signs or symptoms, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, upper or lower respiratory systems signs or symptoms, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. In rendering the above opinions, the examiner is asked to consider the following: A. The Veteran's lay statements, including his December 2016 Board testimony. Specifically, that his headaches and hypertension began in service and were caused by the stresses of combat as an infantryman, that his "tension headaches" were caused by PTSD or hypertension. B. The Veteran's service treatment records for his period of service between June 1978 and June 1981 are unavailable for review. C. The December 2016 private medical report from Dr. M. addressing the etiology of the disabilities. (Continued on the next page) 2. After, readjudicate the Veteran's claim. If the claim remains denied, send the Veteran and his representative a supplemental statement of the case (SSOC), and allow them an appropriate time to respond before returning the issue to the Board for further appellate consideration. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Johnston, Associate 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.