Citation Nr: 21066102 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 09-00 177 DATE: October 28, 2021 REMANDED 1. Entitlement to service connection for hypertension is remanded. 2. Entitlement to service connection for heart disease, to include coronary artery disease (CAD), cardiomyopathy, and congestive heart failure (CHF), is remanded. 3. Entitlement to service connection for residuals of a cerebrovascular accident (CVA) is remanded. 4. Entitlement to service connection for peripheral artery disease (PAD) is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from March 1972 to June 1975. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision which, in relevant part, denied service connection for hypertension, heart disease, residuals of a CVA, and bilateral infrapopliteal disease. In February 2012, a Travel Board hearing was held before the undersigned; a transcript is in the Veteran's record. These matters were remanded for additional development in April 2012, August 2015, and July 2017. In December 2018, the Board denied the claims. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (CAVC), resulting in a February 2020 Joint Motion for Remand (JMR) by the parties. A March 2020 CAVC Order remanded the matters for compliance with the JMR instructions. In October 2020 and March 2021, the Board remanded the matters for additional development. 1. Entitlement to service connection for hypertension The Board is aware that the claim was remanded multiple times before (and regrets the delay inherent with another remand); but because there was not substantial compliance with previous remand instructions, another remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the February 2020 JMR, the parties agreed that the August 2017 VA medical opinion regarding the etiology of the Veteran's hypertension (on which the Board's December 2018 denial was based in part) "does not substantially comply with the terms of the Board's July 2017 remand. Specifically, the parties agree that the pertinent question in this case is not whether [the Veteran] was diagnosed with hypertension as defined by the Rating Schedule during service or within the first post-separation year, as the August 2017 VA examiner repeatedly references, but whether the single elevated blood pressure reading documented in service, coupled with the post-service reading of 145/90 on the May 1976 VA examination within one year of separation, were initial manifestations of hypertension" (emphasis added). On July 2021 VA hypertension examination (pursuant to the Board's March 2021 remand), the examiner opined that the Veteran's hypertension "is less likely than not (50 percent or less probability) incurred in or caused by military service." The Board notes that such standard, "50 percent or less probability" is incorrect. ["50 percent" puts the claim in equipoise, and is facially inconsistent with a finding of "less likely than not."] More importantly, however, the examiner essentially reiterated the August 2017 opinion, which the parties agreed was inadequate for rating purposes. She wrote that an elevated blood pressure reading of 145/90 within one year of service, when "coupled with B/P readings in STRs, fails to diagnose the [V]eteran with Hype[r]tension." The opinion provided fails to address whether the single elevated blood pressure reading documented in service, coupled with the May 1976 post-service (within one year of separation) reading of 145/90 were initial manifestations of hypertension (not then diagnostic of hypertension), as required to resolve with the remaining medical question that was agreed upon by the parties in the February 2020 JMR. Accordingly, the opinion is not adequately responsive to the Board's remand directives, and remand for an adequate medical advisory opinion is necessary. See Stegall v. West, 22 Vet. App. 268, 271 (1998). 2., 3., 4. Entitlement to service connection for heart disease, residuals of a CVA, and PAD In the February 2020 JMR, the parties agreed that the claims seeking service connection for heart disease, residuals of a CVA, and PAD are inextricably intertwined with the Veteran's claim seeking service connection for hypertension, and that the additional development required on remand for the hypertension claim may impact these claims. The matters are REMANDED for the following: 1. Obtain all outstanding (updated to the present) records of VA evaluations and treatment the Veteran has received for hypertension, heart disease, residuals of a CVA, and PAD. 2. Then, forward the Veteran's record to an appropriate medical provider (other than the August 2017/October 2020 and July 2021 providers) for review and an advisory medical opinion regarding the likely etiology of his hypertension. [If further examination is necessary, such should be arranged.] On review of the complete record (including this remand and any records received pursuant to the development ordered above), the examiner should: (a) Identify the likely etiology for the Veteran's hypertension. Specifically, is it at least as likely as not (a 50% or better probability) that such is etiologically related to his service/events therein? The rationale for the opinion must specifically address whether the single elevated blood pressure reading documented in service, coupled with the post-service reading of 145/90 on the May 1976 VA examination (within one year following separation) were initial manifestations of hypertension. The consulting provider is advised that a rationale based solely on a finding that the elevated blood pressure readings at issue do not establish a diagnosis of hypertension (per VA or other medical association guidelines) is not responsive to the medical question agreed to by the parties and will be rejected as inadequate. (b) If the Veteran's hypertension is determined to be unrelated to his service, the examiner should identify the etiology considered for the hypertension that is considered to be more likely (and explain why that is so). The examiner should explain the rationale for all opinions, citing to supporting factual data, and medical principles as deemed appropriate. If an opinion sought cannot be given without resort to mere speculation, (to satisfy legal requirements) state whether the need to speculate is due to a deficiency in the state of medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner lacks the necessary knowledge or training. If so, identify the further testing/specialist's opinion/other information needed to enable providing the opinion sought. 3. Thereafter, review the record, and arrange for any further development necessary with respect to the claims of service connection for heart disease, residuals of a CVA, and PAD (e.g., a nexus opinion regarding secondary service connection, if hypertension is determined to be service-connected). GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dupont, 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.