Citation Nr: 21071884 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 13-00 682 DATE: December 1, 2021 REMANDED Entitlement to service connection for hypertension, to include as due to chronic kidney disease, is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty in the United States Marine Corps from March 1978 to March 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of a Department of Veterans' Affairs (VA) Regional Office (RO). In March 2013, the Veteran testified during a hearing before a Veterans Law Judge (VLJ). Thereafter, the VLJ before whom the Veteran appeared retired from the Board. As such, the case was assigned to the undersigned VLJ and the Veteran was afforded a new hearing on the instant claims in January 2021. Procedural History As pertinent here, in March 2021, the Board granted entitlement to service connection for chronic kidney disease, including as due to exposure to contaminated water at Camp Lejeune, and service connection for anemia, to include as due to chronic kidney disease, and remanded the Veteran's claims for service connection for hypertension, erectile dysfunction, and entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) for further development, to include obtaining opinions addressing the likely etiology of the Veteran's hypertension and erectile dysfunction. See Board Decision and Remand dated March 9, 2021. Pursuant to the Board's March 2021 remand, the Veteran was afforded VA examinations in May 2021 and the examination reports and associated etiology opinions are of record and have been reviewed. However, for reasons set forth below, the Board finds there has not been substantial compliance with its March 2021 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). In a May 2021 rating decision, the RO granted service connection for "sexual dysfunction" secondary to Parkinson's disease. Because that decision represents a full grant of the benefit sought for service connection of erectile dysfunction, that issue is no longer before the Board for appellate consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Additionally, in a June 2021 rating decision, the RO granted entitlement to a TDIU, which represents a full grant of the benefits on appeal for that claim. As such, the issue of entitlement to a TDIU is no longer before the Board for appellate consideration. Id. In its June 2021 Supplemental Statement of the Case, the RO denied an earlier effective date for service connection for "erectile dysfunction" and submitted this issue to the Board with the Veteran's claim for service connection of hypertension. Adjudication of the effective date of service connection for sexual dysfunction in a Supplemental Statement of the Case is not appropriate because there has been no initial adjudication of this issue. 38 C.F.R. § 19.31. Moreover, the record does not reflect that the Veteran, to date, has expressed disagreement with the effective date of the service connection grant, and as such, the question of the effective date is not for appellate consideration. VA Opinions Once VA undertakes the effort to provide an examination or medical opinion when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the Board finds deficiencies in the May 2021 and June 2021 VA opinions. In addressing whether the Veteran's hypertension was caused or aggravated by the service-connected chronic kidney disease (CKD), the May 2021 VA examiner opined unfavorably regarding causation, concluding that the Veteran credibly reported that the onset of his hypertension in 2008, which pre-dated the diagnosis of CKD in 2009. Regarding aggravation, the examiner concluded: "There is a lack of objective evidence to establish aggravation. There is no objective evidence to support that the Veteran's hypertension has been worsened beyond the natural progression by CKD." See VA Medical Opinion dated May 29, 2021 at pgs. 7-8. The RO requested clarification regarding aggravation, and in a June 2021 addendum, the VA examiner concluded that the Veteran's hypertension was not aggravated by his CKD because, "As noted by his Nephrologist on 10/26/2009, his blood pressure was easily controlled on one medication, despite declining renal function and nephrotic range proteinuria." See VA Medical Opinion dated June 18, 2021. However, the Veteran's treatment records reflect that he was prescribed at least two different blood pressure medications, Lisinopril and Amlodipine Besylate, and the prescribed daily dosages of each medication has varied through the years, e.g., 2.5 mg to 10 mg for Lisinopril and 5 to 10 mg for Amlodipine Besylate, and there have been periods where no blood pressure medication was prescribed. See, e.g., VA Active Outpatient Medication records dated November 13, 2009, March 17, 2010, July 29, 2010, August 23, 2011, October 22, 2011, January 11, 2012, and April 30, 2012, and February 13, 2020. Although it is not clear whether the dosages of the Veteran's blood pressure medication varied with the severity of his CKD, this was not taken into account by the examiner in her opinion. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based upon an inaccurate factual premise has no probative value). Thus, additional clarification is needed regarding the opinion addressing aggravation. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); Stegall, supra. In addressing whether the Veteran's hypertension may be directly related to service, the VA examiner opined, "[the service treatment records] are silent for any symptoms, treatment or diagnosis of hypertension or CKD. His blood pressure on his separation exam dated 1/29/1981 was 110/80. The Veteran reports that his hypertension was diagnosed around 2008 but admits to no medical visits between 2003 and 2008. Therefore, it is less likely than not that the hypertension was incurred in or caused by '(the) time during service.'" See VA Medical Opinion dated May 29, 2021 at pg. 8. While the opinion seems to imply that the passage of many years between the Veteran's separation from service and the onset of his hypertension renders it unlikely that the disorder is related to service, this was not explained by the examiner. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion). Thus, clarification is needed regarding this opinion. See Barr, supra; Stegall, supra. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Then, request an addendum opinion from the same VA examiner who authored the May 2021 and June 2021 opinions as to the nature and etiology of the Veteran's hypertension, if available, otherwise from an appropriately qualified VA clinician. The claims file, and a copy of this Remand, must be made available to and be reviewed by the examiner. *The examiner's review of the body of this Remand is recommended to assist in the application of these remand directives and in avoiding errors that have resulted in deficiencies in previous VA examinations. *The need for another examination(s) is left to the discretion of the medical professional offering the addendum opinion. If an examination(s) is performed, all indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. After a complete review of the claims file, the examiner is asked to provide an opinion with complete rationale addressing the following: (a) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's currently diagnosed hypertension was AGGRAVATED by the service-chronic kidney disease. *Any increase/aggravation is sufficient, permanent aggravation is NOT required. See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019) (permanent worsening is not a requirement for secondary service connection of a non-service-connected injury or disease). *Regarding aggravation, it is requested that the examiner reconcile variations in the Veteran's blood pressure medication dosages as reflected in the treatment records (e.g., as shown in the VA "Active Outpatient Medications" indexes) with the severity of the Veteran's chronic kidney disease. (b) If the answer to (a) is negative, provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the currently diagnosed hypertension onset during active duty service, manifested within one year after service separation, or is otherwise casually or etiologically related to it. The examiner should provide a COMPLETE rationale for each opinion. 3. Thereafter, ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. Then, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.