Citation Nr: 1005149 Decision Date: 02/04/10 Archive Date: 02/25/10 DOCKET NO. 07-15 617 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for residuals of heat injury. 3. Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from August 1981 to August 1984, and from November 1990 to August 1991. He had additional service in the National Guard. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). By rating action dated in November 2005, the RO denied the Veteran's claims for service connection for hypertension and residuals of a heat injury. A June 2007 rating decision denied service connection for a cervical spine disability. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran asserts service connection is warranted for hypertension, residuals of a heat injury and a cervical spine disability. The Board points out that the Veteran has alleged that hypertension is associated with his heat injury. The service treatment records disclose that numerous normal blood pressure readings were recorded during the Veteran's periods of active duty. The separation examination in July 1991 revealed blood pressure of 157/68. The Veteran was afforded a general medical examination by the Department of Veterans Affairs (VA) in December 1991. Blood pressure readings were 158/94, 140/80, 152/90, 160/90 and 150/88. The pertinent diagnosis was probable untreated essential hypertension. Additional medical records demonstrate the Veteran has hypertension. The Veteran's National Guard records reflect he was seen in June 1996 and reported he was a heat casualty. He related he started to become diaphoretic. It was indicated he was weak and dizzy and that he had right-sided chest discomfort. The assessment was chest wall pain. It was noted in February 2003 that the Veteran had a recurrent heat injury after a two-mile run. A permanent profile was issued. A history of heat prostration was noted in January 2004. The Veteran was seen in a private facility in October 2002. It was noted he was performing a physical training test earlier that month, when he collapsed and lost consciousness. He had been seen at Coliseum Hospital, and was rehydrated. He described a previous episode of syncope during a physical training test the previous year. Following an examination, the pertinent diagnosis was history of syncope, secondary to heat illness. Private medical records show the Veteran was seen in March 2006. He had been the driver of a motor vehicle that was hit from behind the previous day. He stated he had a headache since then. X-rays of the cervical spine revealed degenerative cervical spondylosis, but no acute cervical injury was identified. The pertinent diagnosis was degenerative disc disease of the cervical spine. In a statement received in December 2009, a private chiropractor related he had first treated the Veteran in 2006 following the automobile accident. The diagnosis at that time was neck sprain associated with and complicated by extreme preexisting spinal arthritic spurring and joint degeneration. The chiropractor stated the type and severity of the Veteran's spondylosis take many years to reach the level the Veteran experienced. He added that the spinal condition was in no way caused by the motor vehicle accident, but was the result of many years of extreme wear and tear on his body that had stressed the joints so much that the body, in an attempt to stabilize the joints started an arthritic spurring process. He claimed the level of spur formation the Veteran had was not normally seen with normal activities of daily living, but usually by extreme long-lasting trauma or repeated spinal stress over a long period of time, as the Veteran had been subjected to in service. In light of the above, the Board finds that VA examinations are warranted adequately address the claims for service connection. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Finally, although a letter complying with the notification requirements of the Veterans Claims Assistance Act of 2000 (VCAA) was sent regarding the claims for service connection for hypertension and a cervical spine disability, no such letter has been sent addressing the claim for service connection for residuals of heat injury. In addition, during the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. In the present appeal, the Veteran was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the claims on appeal. Thus, on remand the RO/AMC should provide corrective notice to include notice consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Under the circumstances of this case, the Board finds that additional development of the record is required. Accordingly, the case is REMANDED to the RO/AMC for action as follows: 1. The RO/AMC must review the Veteran's claims file, and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103 and 5103A (West 2002) are fully complied with and satisfied with respect to the claim for service connection for residuals of heat injury. The letter should also advise the Veteran that a disability rating and effective date will be assigned if service connection is awarded for his claimed conditions, to include an explanation as to the information or evidence needed to establish a disability rating and effective date for the claims on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The RO/AMC should contact the Veteran and request that he furnish the names, addresses, and dates of treatment of all medical providers from whom he has received treatment for hypertension, residuals of a heat injury and a cervical spine disability following his discharge from service. The RO/AMC should specifically request he provide the relevant information concerning his treatment at Coliseum Hospital in 2002. After securing the necessary authorizations for release of this information, the RO/AMC should seek to obtain copies of all treatment records referred to by the Veteran, which are not duplicates of those already contained in the claims file. 3. The Veteran should then be afforded a VA cardiovascular examination to determine the nature and etiology of his disabilities. The claims folder should be made available to and be reviewed by the examiner in conjunction with the examination. All necessary tests should be performed. The cardiovascular examiner should be requested to provide an opinion concerning whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hypertension is related to service. He/she should also specify whether the Veteran has any residuals of heat stroke and, if so, whether they are related to the episodes he experienced during his National Guard service. The rationale for any opinion expressed should be set forth. 4. The Veteran should then be afforded a VA orthopedic examination to determine the nature and etiology of his cervical spine disability. The claims folder should be made available to and be reviewed by the examiner in conjunction with the examination. All necessary tests should be performed. The examiner should address the statement from the Veteran's chiropractor received in December 2009. He/she should furnish an opinion concerning whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current cervical spine disability is related to service. The rationale for any opinion expressed should be set forth. The claims folder should be made available to the examiner in conjunction with the examination. 5. Following completion of the above, the RO/AMC should review the evidence and determine whether the Veteran's claim may be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration. The appellant 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). This claim must be afforded expeditious treatment. The law requires that all claims that are 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.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2009).