Citation Nr: 21009332 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-52 744 DATE: February 22, 2021 REMANDED Entitlement to service connection for the Veteran’s cause of death is remanded. REASONS FOR REMAND This matter was most recently before the Board of Veterans’ Appeals (Board) in November 2020 when it was remanded with explicit instructions for the Agency of Original Jurisdiction (AOJ) to obtain an opinion from an independent medical expert in accordance with 38 U.S.C. § 5109 or associate a formal finding with the claims file explaining why such opinion could not obtained. In December 2020, the AOJ obtained another opinion from a VA examiner and did not associate any documentation with the claims file regarding its inability to obtain an opinion from an independent medical expert, which does not constitute substantial compliance with the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Unfortunately, the December 2020 opinion, much like this previous VA opinions, is inadequate to make an informed decision on the Appellant’s claim. Although the December 2020 VA examiner conceded post-traumatic stress disorder (PTSD) can aggravate hypertension and other cardiovascular disorders, the December 2020 VA examiner reported it is less likely than not a service-connected disability led and/or contributed substantially or materially to the congestive heart failure that led to the Veteran’s death because his hypertension diagnosis predates his PTSD diagnosis; however, treatment records clearly show the Veteran’s initial February 2006 PTSD diagnosis was a change in diagnosis for a psychiatric condition that had been present for several years and possibly dating back to his active service, which was not addressed by the December 2020 VA examiner. Further, the December 2020 VA examiner’s opinion appears to address only a theory based on causation to the extent that he concluded the congestive heart failure that caused the Veteran’s death was not proximately due to his service-connected PTSD. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). This complexity is why the Board finds an opinion from an independent medical expert to be of upmost importance in this case. Yet, the Board recognizes there are resource limitations that must be considered with regard to VA’s duty to assist, which is why it has requested that the AOJ associate a formal finding with the claims file explaining its inability to obtain an opinion that has clearly been authorized by Congress under 38 U.S.C. § 5109 if such opinion cannot be obtained. The matter is REMANDED for the following action: 1. Obtain an opinion from an independent medical expert pursuant to 38 U.S.C. § 5109 in accordance with the Board’s August 2020 and November 2020 remand directives. Specifically, the opinion must be from a non-VHA cardiologist and/or an internal medicine specialist and address the following question: Was the hypertension, or any other cardiovascular disease, that led and/or contributed substantially or materially to the congestive heart failure that caused the Veteran’s death at least as likely as not (50 percent probability or greater) proximately due to, or aggravated by, his service-connected post-traumatic stress disorder (PTSD)? The opinion must explicitly address both causation and aggravation to be deemed adequate. It must be noted aggravation means an increase in the severity of the underlying disability beyond its natural progression. In the context of the opinion, the selected expert must address the December 2019 written statement from the Veteran’s son, M.S., M.D., that indicates “PTSD can directly damage the cardiovascular system through increases in blood pressure, impairment of vasodilation, formation of atherosclerotic plaques and heightened plaque instability” and how this medical principle applies in the facts present in the Veteran’s individual case. The selected expert is also asked to review the medical literature cited by M.S., M.D., and summarize how it either supports or weighs against a finding that PTSD either caused or aggravated hypertension, or any other cardiovascular disease, in the Veteran’s case with specific emphasis on literature that discusses PTSD and risk of incident cardiovascular disease in aging veterans. If the expert provides a rationale for a negative opinion similar to the December 2020 VA examiner, i.e., that the Veteran’s hypertension diagnosis predated his PTSD diagnosis, the expert must address treatment records that suggest the Veteran’s initial PTSD diagnosis was a change in diagnosis for a psychiatric condition that had been present for several years and possibly dating back to his active service. The expert must also address his or her qualifications to provide the requested opinion, to include a discussion of whether an expert in another specialty would be more well suited to address the question at hand. The expert’s report must include a complete rationale for all conclusions reached in the requested opinion. If it is not possible to obtain the requested opinion from an independent medical expert, a formal finding to this effect must be included in the claims file with a detailed explanation for why it is not possible to obtain an independent medical opinion that is authorized by statute. After this is completed, only then may the opinion be obtained from a VHA cardiologist and/or an internal medicine specialist, but the opinion must comply in all respects with the guidance outlined above. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.