Citation Nr: 1754205	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  06-09 032	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to service connection for hypertension, including as secondary to service-connected diabetes mellitus and/or posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for residuals of a stroke, including due to Agent Orange exposure, and secondary to service-connected diabetes mellitus and/or coronary artery disease (CAD).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Coyne, Associate Counsel


INTRODUCTION

The Veteran completed active duty service from December 1965 to December 1967.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied service connection for hypertension and residuals of a stroke.  These claims were remanded to the Agency of Original Jurisdiction (AOJ) in May 2012 and January 2017 for additional claim development, and have now been returned to the Board for further adjudication.  

The Veteran testified before a Decision Review Officer (DRO) in an October 2005 hearing at the RO, and also testified before the undersigned Veterans Law Judge in a March 2012 videoconference hearing.  A transcript of each hearing has been associated with the claims file.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

Unfortunately, due to reasons that follow, further remand is required.  Although the Board regrets this delay, it is necessary to ensure the Veteran is afforded adequate claim development assistance.

The January 2017 Board remand decision requested that addendum opinions be procured addressing whether the Veteran's hypertension is secondary to his service-connected diabetes mellitus, Type II and PTSD, and whether the Veteran's stroke residuals are secondary to his service-connected diabetes mellitus or CAD.  When the Board remands a claim to the RO it has a duty to ensure substantial compliance with the directives contained in that remand.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998).  Although addendum examination reports were procured in February and March 2017, for the reasons that follows the Board finds that these addendum examinations reports did fully comply with the Board's January 2017 remand instructions.

With regard to whether the Veteran's hypertension is secondary to his service-connected PTSD, the Board notes that the examiner was requested to address a November 2004 letter from private physician Dr. M. J. and the February 2015 VA PTSD examination report.  However, instead the February 2017 examiner reiterated his previously provided etiology opinion without any discussion of the November 2004 letter or February 2015 VA PTSD examination report.  As such, remand of this claim is required for substantial compliance with the Board's January 2015 remand directives.

As for the Veteran's stroke residuals claim, the March 2017 addendum examination report failed to provide a secondary service connection opinion with regard to the aggravation prong for the Veteran's diabetes mellitus, Type II and CAD.  With regard to diabetes mellitus, contrary to the examiner's findings in his addendum opinion, the aggravation prong of secondary service connection is not addressed in part (b) of his addendum opinion or the original examination report.  Additionally, as the Veteran's hypertension claim is being remanded, if relevant, an addendum opinion addressing stoke residuals as secondary to the Veteran's hypertension is also required.  Accordingly, remand of this claim is required for procurement of the requested opinions.

Additionally, a review of the record indicates that he receives treatment from VA for the conditions on appeal.  As such, on remand, any outstanding VA treatment records relevant to the claims on appeal should be procured.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Obtain all outstanding VA treatment records, relevant to the claims on appeal and associate those records with the claims file.  Efforts to obtain these records should be documented in the claims file.  If these records cannot be located the Veteran must be notified.

2. Provide the Veteran's claims file to an appropriate clinician for provision of a supplemental opinion regarding the Veteran's hypertension.  A new examination is only required if deemed necessary by the AOJ or the examiner.  The entire electronic claims file (contained in Virtual VA and/or VBMS) and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated.

a. If a new examination is warranted, the examiner must take a detailed history from the Veteran.  If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding.  

b. Then, the examiner is asked to review the November 2004 letter from Dr. M. J., and the results of the February 2015 VA PTSD examination report and provide responses to the following:

i. To the extent possible, please comment on the reference to "therapy" contained in the July 2012 VA examination report, and whether this is "therapy" related to hypertension or therapy related to PTSD.

ii. Is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is proximately due to or the result of his PTSD?

iii. Is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension has been aggravated beyond its natural progression by the Veteran's PTSD.

c. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report.  If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion, as well as specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided.

3. Then after the addendum opinion with regard to hypertension has been procured as requested in (2) provide the Veteran's claims file to an appropriate clinician for provision of a supplemental opinion regarding the Veteran's stroke residuals.  A new examination is only required if deemed necessary by the AOJ or the examiner.  The entire electronic claims file (contained in Virtual VA and/or VBMS) and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated.

a. If a new examination is warranted, the examiner must take a detailed history from the Veteran.  If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding.  

b. Then the examiner is asked to provide the following addendum opinions:

i. If a positive etiology opinion has been provided with regard to service connection for hypertension, is it at least as likely as not (50 percent or greater probability) that the Veteran's stroke residuals, left carotid artery anomaly, or other condition that caused his stroke have been aggravated beyond their natural progression by the Veteran's hypertension.

ii. Is it at least as likely as not (50 percent or greater probability) that the Veteran's stroke residuals, left carotid artery anomaly, or other underlying condition that caused his stroke (1) is proximately due to or the result of his diabetes mellitus, Type II; and (2) whether it is at least as likely as not (50 percent or greater probability) that the Veteran's stroke residuals, left carotid artery anomaly, or other condition that caused his stroke have been aggravated beyond their natural progression by the Veteran's diabetes mellitus, Type II.

iii. Is it at least as likely as not (50 percent or greater probability) that the Veteran's stroke residuals, left carotid artery anomaly, or other condition that caused his stroke have been aggravated beyond their natural progression by the Veteran's coronary artery disease.

c. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report.  If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion, as well as specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided.

4. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full.  If any development is incomplete, appropriate corrective action must be implemented.  If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action.

5. After undertaking any necessary additional development, readjudicate the issues on appeal.  If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).











							(Continued on the next page)

This claim must be afforded expeditious treatment.  The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2017).



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