Citation Nr: 21032806 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 04-09 643 DATE: May 28, 2021 REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served in the United States Army on active duty from July 1983 to February 1986, at which time he received a discharge under honorable conditions. The Veteran reenlisted and served on active duty from February 1986 to November 1988. The Veteran received a discharge under other than honorable conditions for the later period of service. The issue comes before the Board of Veterans' Appeals (Board) on appeal from a July 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Veterans Law Judge (VLJ) at a May 2006 Travel Board hearing. A transcript of this hearing is in the record. In February 2017, the Veteran was notified that the VLJ who held his May 2006 hearing was no longer employed by the Board. The record does not contain a response or request for another hearing from the Veteran. The Board will consider the case on the evidence of record. 38 C.F.R. § 20.717. The claim was previously before the Board in April 2007. The Board remanded for further development. In January 2010, the Board denied service connection for hypertension as secondary to service-connected residuals of cold injuries to bilateral feet and residuals of bilateral ankle disabilities. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In an August 2011 Memorandum Decision, the Court vacated and remanded the Board's decision denying service connection for the above claim. The Board subsequently remanded the above claim again for further development in May 2012, May 2017, and November 2019. The claim was most recently before the Board in December 2020. The Board remanded to provide an independent advisory medical opinion regarding the etiology of the Veteran's hypertension. The case has since been returned to the Board for appellate review. While the Board regrets further delay, another remand is necessary to provide the Veteran with necessary advisory medical opinions, and to ensure substantial compliance with the December 2020 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, is remanded. The Veteran contends that his service-connected disabilities have aggravated and caused his current diagnosis of hypertension. Specifically, the Veteran contends that his hypertension is related to his weight gain and obesity, secondary to his service-connected disabilities. The Board's December 2020 remand directives included a request for an independent medical expert to provide an opinion addressing the Veteran's secondary service connection claim for hypertension. Notably, the Board requested that the examiner opine as to whether the Veteran's service-connected disabilities aggravate, beyond a natural progression, the Veteran's obesity or weight gain. The February 2021 independent examiner provided the opinion that the Veteran's service-connected disabilities did not result in the Veteran's claimed obesity. The examination reported that the Veteran's service-connected conditions do not preclude all forms of exercise. The examiner acknowledged that orthopedic conditions may cause pain with weight bearing and high impact activity; however, the examiner noted there are numerous other strategies that can prevent obesity. The February 2021 medical opinion failed to fully address whether the Veteran's service-connected disabilities aggravated the Veteran's obesity, as requested in the December 2020 Board remand directives. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Id. Accordingly, remand is necessary to provide the Veteran a medical opinion addressing whether the Veteran's service-connected disabilities aggravated the Veteran's obesity or weight gain, to include as due to pain and functional impairment. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the examiner who provided the February 2021 medical opinion, or, if not available, another appropriately qualified independent medical professional. If the examiner deems it necessary, afford the Veteran an additional examination. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Provide the claims file, including a copy of this REMAND, to the examiner for review. Following a review of the claims file, please provide a medical opinion regarding the following: a) Did the Veteran's service-connected disabilities, to include right foot cold injury, left foot cold injury, right ankle injury, left ankle injury, left knee sprain, right knee sprain, right ankle strain, left ankle strain, or scars of the knees, aggravate (beyond a natural progression) the Veteran's obesity/weight gain, to include as due to pain and functional impairment? b) If yes, was any aggravation of obesity/weight gain as a result of the service-connected disabilities a substantial factor in causing hypertension? c) If yes, would the hypertension have not occurred but for the obesity/weight gain aggravated by the service-connected disabilities? The examiner must provide a comprehensive report including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, 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.