Citation Nr: 1018985 Decision Date: 05/24/10 Archive Date: 06/04/10 DOCKET NO. 07-11 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a psychiatric disorder, claimed as depression and anxiety. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Bridgid D. Cleary, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1985 to August 1985, from March 1989 to August 1989, from August 1992 to November 1992 and from December 2003 to November 2004, with additional inactive duty service in the Army National Guard. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a Board hearing at the RO on May 14, 2009. The record indicates that the Veteran did not appear for that hearing. No explanation has been received for the Veteran's absence and thus his hearing request is considered to be withdrawn. 38 C.F.R. § 20.704(d) (2009). Under Clemons v. Shinseki, 23 Vet. App. 1 (2009), a claim for benefits based on PTSD encompasses benefits based on another acquired psychiatric disorder because the evidence developed during the processing of the claim indicated that the symptoms for which the claimant was seeking VA benefits may have been caused by another acquired psychiatric disorder. In this case, the Veteran's claim was expanded to include a claim for PTSD upon receipt of his July 2006 notice of disagreement. In September 2008, the Veteran was sent a letter requesting additional information regarding his PTSD claim and provided with a VA Form 21-0781. The Veteran has not responded to this letter and no specific stressor has been alleged. In November 2008, the Veteran was denied service connection for PTSD, in part for failure to provide a verified stressor. See 38 C.F.R. § 3.304(f). Neither the Veteran nor his representative has disputed that rating decision, so the issue on appeal before the Board does not include PTSD. 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 contends that he developed hypertension and a psychiatric disorder (claimed as depression and anxiety) while on active duty. As the Veteran was a member of the Army National Guard, he has served for several non- consecutive periods of active duty. These periods were from June 1985 to August 1985, from March 1989 to August 1989, from August 1992 to November 1992 and from December 2003 to November 2004. The claims file currently contains VA medical records dated from February 2005 to December 2005. These records show ongoing treatment at the Memphis VAMC, but no additional VA treatment records have been added to the file since December 2005. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically of file. See Dunn v. West, 11 Vet. App. 462, 466-467 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, all VA treatment records created after December 2005 must be obtained and associated with the claims file before the Board can issue a final decision on either claim. Hypertension Claim The medical evidence of record indicates a history of elevated blood pressure readings. The Veteran was given a medical examination in August 1988. At that time, his blood pressure was 146/90. A June 1990 examination found his blood pressure to be 140/84. An examination in August 1992 recorded his blood pressure as 150/98. A June 1999 examination found his blood pressure to be 148/93. In June 2004, while on active duty, the Veteran's blood pressure was measured three times: 143/88, 151/88, and 142/97. In August 2005, the Veteran underwent a VA medical examination in conjunction with this claim. At that time, the VA examiner diagnosed the Veteran with essential hypertension. This examiner did not offer a medical opinion on the relevant questions of whether the Veteran's current hypertension was incurred in or aggravated by any period of active service. For this reason, the Board finds that further examination and a medical opinion regarding whether or not a nexus exists between the Veteran's hypertension and his active service based on the elevated blood pressure readings taken during his inactive service. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.326; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Psychiatric Claim VA treatment records indicate that the Veteran has been receiving mental health treatment since January 2005, shortly after the conclusion of his last period of active duty. Later records include diagnoses of posttraumatic stress disorder (PTSD), major depression, depression, and adjustment disorder with depressed mood and chronic anxiety. (As noted earlier, PTSD is not construed as being a component of the instant appeal.) In August 2005, the Veteran underwent a VA mental disorders examination in conjunction with this claim. At that time, the VA examiner diagnosed the Veteran with and adjustment disorder with depressed mood and chronic anxiety. This examiner did not offer a medical opinion on the relevant questions of whether the Veteran's current psychiatric condition was incurred in or aggravated by any period of active duty. For this reason, the Board finds that further examination and a medical opinion regarding whether or not a nexus exists between the Veteran's current psychiatric condition and his active service. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.326; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request all VA treatment records pertaining to the Veteran's hypertension and mental health from Memphis VAMC not previously obtained dated on or after December 2005. All records obtained pursuant to this request must be included in the Veteran's claims file. If the search for such records has negative results, documentation to that effect should be included in the claims file. 2. The RO/AMC should schedule the Veteran for a VA medical examination by an examiner with the appropriate expertise to determine the nature and etiology of any hypertension found to be present. Specifically, the VA examiner should address the following questions: a. Does the Veteran currently have hypertension as defined by the criteria delineated in 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (defining hypertension for VA compensation purposes as diastolic blood pressure predominantly 90 mm or greater and isolated systolic hypertension as systolic blood pressure predominantly 160 mm or greater with diastolic blood pressure of less than 90mm)? b. If so, does the evidence of record indicate that the Veteran's hypertension had its onset during, or is otherwise causally related to a period of active duty service (from June 1985 to August 1985, from March 1989 to August 1989, from August 1992 to November 1992 and from December 2003 to November 2004) or within one year thereof? c. Alternately, is it at least as likely as not that the Veteran's hypertension, which may have predated some of his periods of active duty service, was aggravated by a subsequent period of active duty service? Please note that the term "as likely as not" does not mean within the realm of possibility. Rather it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended relationship; "less likely" weighs against a causal relationship. Please answer the questions posed with use of "as likely," "more likely," or "less likely" language. The examiner should provide all examination findings, along with the complete rationale for each opinion expressed and conclusion reached. The rationale should include discussion of the service treatment records (showing heightened blood pressure readings in August 1988, June 1990, June 1999, August 1992, and June 2004) and the recent VA treatment records. 3. The RO/AMC should schedule the Veteran for a VA mental health examination to determine the nature and etiology of any currently diagnosed psychiatric condition found to be present. Specifically, the VA examiner should identify all current psychiatric diagnoses and state whether it is at least as likely as not that any such diagnosis is attributable to a period of the Veteran's active duty military service? Please note that the term "as likely as not" does not mean within the realm of possibility. Rather it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended relationship; "less likely" weighs against a causal relationship. Please answer the questions posed with use of "as likely," "more likely," or "less likely" language. The examiner should provide all examination findings, along with the complete rationale for each opinion expressed and conclusion reached. The rationale should include discussion of the VA treatment records showing mental health treatment beginning in January 2005. 4. Review the record and complete any further development, if necessary. Thereafter, readjudicate the issues on appeal. If any claim remains denied, the RO should issue a supplemental statement of the case and afford the Veteran and his representative an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). _________________________________________________ ERIC S. LEBOFF Acting 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).