Citation Nr: 21027601
Decision Date: 05/06/21	Archive Date: 05/06/21

DOCKET NO. 15-43 191
DATE: May 6, 2021

REMANDED

Entitlement to service connection for hypertension is remanded.

REASONS FOR REMAND

The Veteran served on active duty from July 1976 to July 1980.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision that issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA) that denied service connection for hypertension.

This matter was previously before the Board in April 2019, at which time the Board remanded the case for additional development, to include obtaining a VA examination. The Board remanded the matter again in July 2020 to obtain an addendum medical opinion or VA examination to determine the nature and etiology of the Veteran's hypertension. Regrettably, the Board finds that the RO did not substantially comply with the July 2020 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding veterans are entitled to compliance with Board remand instructions). Accordingly, the claims are remanded to the RO for corrective action, as set forth below. 

A VA examination was conducted in December 2020. The examiner opined that the Veteran's claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service, injury, event, or illness. The rationale provided by the examiner was that "a review of the medical records showed no evidence of complications at present time, which makes it less likely than not that the [hypertension] while in active duty caused any aggravations or complications."

The Board finds this opinion inadequate. While the examiner offered an opinion on the Veteran's hypertension predating service, the examination failed to employ the correct standard when addressing the question of aggravation. In the rationale, the examiner failed to answer the question before the Board of whether the Veteran's hypertension clearly and unmistakably pre-existed service and, if so, whether it was clearly and unmistakably aggravated beyond its natural progression by an in-service injury, event, or illness. Rather, the examiner opined that it was "less likely than not that the untreated [hypertension] while in active duty caused any aggravations or complication," whereas the remand directive asked if the Veteran's hypertension clearly and unmistakably pre-existed service and, if so, was clearly and unmistakably not worsened thereby. 

In light of the aforementioned deficiencies the Board finds that a remand is warranted. Stegall, 11 Vet. App. 268.

The matters are REMANDED for the following action:

Obtain an addendum medical opinion or schedule the Veteran for a new VA examination with an appropriate examiner to address the question of aggravation. The claims file must be reviewed by the examiner in conjunction with the examination.

Upon review of the Veteran's record, the examiner should provide an opinion responding to the following: 

	Is there clear and unmistakable evidence that the Veteran's hypertension preexisted service?

	If so, is there clear and unmistakable evidence that the Veteran's hypertension was not aggravated beyond the natural progress of the condition by any in service injury, event, or disease? The examiner must address the Veteran's contention that his hypertension was aggravated due to absence of treatment in service. 

In rendering the above opinions, the examiner must specifically consider and discuss the Veteran's service treatment records. The examiner is advised that the Veteran is competent to report his symptoms and history and such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted the examiner should provide a reason for doing so. The examiner's rationale must specifically use the "clear and unmistakable" standard as set out in the prior remand, and above. 

 

Caroline B. Fleming

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M.N. Bush, 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.