Veteranclaims’s Blog

February 23, 2018

Single Judge Application; Hypertension due to PTSD or Ischemic Heart Disease; Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012); medical read as a whole;

Excerpt from decision below:

“In response to the Board’s third remand question—whether it was at least as likely as not that the appellant’s hypertension was aggravated by his service-connected ischemic heart disease or PTSD—the examiner stated that his hypertension was “not aggravated by his service connected disabilities for the same reasons/rationale as mentioned above.” R. at 241. However, it is not clear, reading the opinion as a whole, what reason or rationale the examiner is referencing to support her opinion that the appellant’s hypertension is not aggravated by his service-connected ischemic heart disease or PTSD. R. at 240-41; see Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012) (holding that medical examination reports “must be read as a whole”). Without more, the Court cannot understand her rationale for her conclusion that the appellant’s hypertension is not aggravated by his service-connected disabilities. See 38 U.S.C. § 7104(d)(1); Allday, 7 Vet.App. at 527.
Moreover, the Board does not discuss the July 2014 examiner’s opinion with respect to the question of whether it is at least as likely as not that the appellant’s hypertension was aggravated by his ischemic heart disease or PTSD beyond stating that she opined that his hypertension was not aggravated by those disabilities. R. at 6. The Board’s analysis, instead, focuses on the examiner’s response to the first two remand questions. Id. Accordingly, the Court cannot understand the precise basis for the Board’s determination that the July 2014 opinion was adequate and that it substantially complied with the May 2014 remand instructions, and the Court’s review of this matter is frustrated. See 38 U.S.C. § 7104(d)(1); Stegall v. West, 11 Vet.App. 268, 271(1998) (“[A] remand by this Court or the Board imposes upon the Secretary . . . a concomitant duty
4
to ensure compliance with the terms of the remand.”); Allday, 7 Vet.App. at 527; see also Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (holding that only substantial, and not absolute, compliance with remand orders is required). The Court will vacate and remand the Board’s decision. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that a remand is the appropriate remedy where the Board failed to provide an adequate statement of reasons or bases for its determinations).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-2254
JOHNNIE R. CUMMINGS, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
PIETSCH, Judge: The appellant, Johnnie R. Cummings, appeals, through counsel, an
April 14, 2016, Board of Veterans’ Appeals (Board) decision that denied entitlement to service
connection for hypertension, including as secondary to his service-connected ischemic heart
disease and post-traumatic stress disorder (PTSD). Record (R.) at 1-12. On November 6, 2017,
the Court issued a memorandum decision in this case. The appellant subsequently filed a timely
motion for single-judge reconsideration or, in the alternative, for panel review. The Court will
grant the appellant’s motion for single-judge reconsideration. The November 6, 2017,
memorandum decision is withdrawn and this decision is issued in its stead. Single-judge
disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is
timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266.
For the reasons that follow, the Court will vacate and remand the April 14, 2016, Board decision.
I. BACKGROUND
The appellant served in the U.S. Navy from February 1967 to September 1970, including
service in the Republic of Vietnam. R. at 1425.
In a June 2009 rating decision, the VA regional office (RO) denied the appellant’s claim
for entitlement to service connection for hypertension. R. at 1395-1401. Following a timely
appeal, R. at 1361, the appellant submitted a letter from his private physician, who opined that the
2
appellant’s PTSD “is clearly a major driving force for his hypertension,” R. at 374. In a May 2014
remand, the Board ordered the RO to schedule the appellant “for an appropriate VA examination to ascertain the current nature and likely etiology of his hypertension, to include whether it was incurred in service or is caused or aggravated by a service-connected disability.”1 R. at 808.
Specifically, the Board instructed the examiner to opine whether it was at least as likely as not that
the appellant’s hypertension was incurred in or aggravated by service; caused by his serviceconnected
disabilities, including ischemic heart disease and PTSD; or was aggravated by his
service-connected disabilities, including ischemic heart disease and PTSD. R. at 809. The
appellant underwent a VA medical examination in June 2014 and the examiner wrote her opinion
in July 2014. R. at 237-41. In a September 2014 addendum opinion, the July 2014 examiner stated
that a review of the private physician’s letter did not alter her opinion. Id.
II. ANALYSIS
The appellant argues that the Board clearly erred when it determined that VA satisfied its
duty to assist, as the July 2014 VA opinion is inadequate or, alternatively, that the Board provided
an inadequate statement of reasons or bases for that determination. Appellant’s Brief (Br.) at 5-
14. In reply, the Secretary disputes the appellant’s contentions and argues that the July 2014
opinion and Board’s statement of reasons or bases for its denial of service connection are adequate.
Secretary’s Br. at 4-18. The Court agrees with the appellant that the Board failed to provide an
adequate statement of reasons or bases to support its determination that the July 2014 VA opinion
is adequate. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995) (holding
that the Board’s statement of reasons or bases for its decision “must be adequate to enable a
claimant to understand the precise basis for the Board’s decision, as well as to facilitate informed
review in this Court”).
In response to the Board’s first remand question—whether it was at least as likely as not
that the appellant’s hypertension was incurred in or aggravated by service—the July 2014 examiner
opined that his hypertension “did not incur in the military and was not aggravated by service,” as
1 The appellant is service connected for type II diabetes mellitus, PTSD, and ischemic heart disease. R. at
2, 806, 1109. He does not argue that his hypertension is related to his diabetes. R. at 8 (noting that the appellant stated
that his diabetes has nothing to do with his hypertension and finding that the record does not raise the issue); see
Cromer v. Nicholson, 19 Vet.App. 215, 217 (2005) (“[I]ssues not raised on appeal are considered abandoned.”), aff’d,
445 F.3d 1346 (Fed. Cir. 2006).
3
he did not have hypertension until after his discharge from service. R. at 240. In response to the
Board’s second remand question—whether it was at least as likely as not that the appellant’s
hypertension was caused by his service-connected disabilities, including ischemic heart disease
and PTSD—the examiner stated that ischemic heart disease does not cause hypertension and PTSD
does not cause a chronic elevation of blood pressure. R. at 240-41. With respect to ischemic heart
disease, she stated that hypertension leads to ischemic heart disease. R. at 240. With respect to
PTSD, relying on an excerpt from the Mayo Clinic’s website regarding artery damage, she noted
that, although stress may lead to a temporary increase in blood pressure, that increase is not
permanent, and explained that “PTSD would be the same way”; i.e., his blood pressure increase
due to PTSD is “only temporary at the moment he is upset[,] not a chronic increase on a day to
day basis.” Id. She explained that “[i]t is more likely that his [hypertension] is related to being
overweight as a cause.” R. at 240 (emphasis added).
In response to the Board’s third remand question—whether it was at least as likely as not that the appellant’s hypertension was aggravated by his service-connected ischemic heart disease or PTSD—the examiner stated that his hypertension was “not aggravated by his service connected disabilities for the same reasons/rationale as mentioned above.” R. at 241. However, it is not
clear, reading the opinion as a whole, what reason or rationale the examiner is referencing to support her opinion that the appellant’s hypertension is not aggravated by his service-connected ischemic heart disease or PTSD. R. at 240-41; see Acevedo v. Shinseki, 25 Vet.App. 286, 293(2012) (holding that medical examination reports “must be read as a whole”). Without more, the
Court cannot understand her rationale for her conclusion that the appellant’s hypertension is not aggravated by his service-connected disabilities. See 38 U.S.C. § 7104(d)(1); Allday, 7 Vet.App. at 527.
Moreover, the Board does not discuss the July 2014 examiner’s opinion with respect to the question of whether it is at least as likely as not that the appellant’s hypertension was aggravated by his ischemic heart disease or PTSD beyond stating that she opined that his hypertension was not aggravated by those disabilities. R. at 6. The Board’s analysis, instead, focuses on the examiner’s response to the first two remand questions. Id. Accordingly, the Court cannot understand the precise basis for the Board’s determination that the July 2014 opinion was adequate and that it substantially complied with the May 2014 remand instructions, and the Court’s review of this matter is frustrated. See 38 U.S.C. § 7104(d)(1); Stegall v. West, 11 Vet.App. 268, 271(1998) (“[A] remand by this Court or the Board imposes upon the Secretary . . . a concomitant duty
4
to ensure compliance with the terms of the remand.”); Allday, 7 Vet.App. at 527; see also Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (holding that only substantial, and not absolute, compliance with remand orders is required). The Court will vacate and remand the Board’s decision. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that a remand is the appropriate remedy where the Board failed to provide an adequate statement of reasons or bases for its determinations).
In light of this outcome, the Court will not consider the appellant’s remaining arguments at
this time. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (noting that the factual and legal context
may change following a remand to the Board and explaining that “[a] narrow decision preserves
for the appellant an opportunity to argue those claimed errors before the Board at the
readjudication, and, of course, before this Court in an appeal, should the Board rule against him.”).
On remand, the appellant may raise his remaining arguments, along with any additional evidence
and argument, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per
curiam order), and the Board must consider any such evidence or argument submitted. See Kay v.
Principi, 16 Vet.App. 529, 534 (2002). The Board must proceed expeditiously, in accordance with
38 U.S.C. § 7112 (requiring the Secretary to provide for “expeditious treatment” of claims
remanded by the Court).
III. CONCLUSION
After consideration of the parties’ briefs and a review of the record, the Board’s April 14,
2016, decision is VACATED and the matter is REMANDED to the Board for further proceedings
consistent with this decision.
DATED: February 20, 2018
Copies to:
Mark H. Lynch, Esq.
VA General Counsel (027)

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