Citation Nr: 1104100 Decision Date: 02/01/11 Archive Date: 02/14/11 DOCKET NO. 06-01 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for arterial hypertension, claimed as secondary to service-connected diabetes mellitus, type II. 2. Entitlement to a compensable rating for service-connected generalized anxiety disorder with depressive features, formerly conversion reaction. REPRESENTATION Veteran represented by: Joseph R. Moore, Attorney at Law WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Pansiri, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1967 to September 1969, during the Vietnam Era. This appeal comes before the Board of Veterans' Appeals (Board) from August 2005 and August 2006 rating decisions of the Department of Veterans Affairs (VA), San Juan, the Commonwealth of Puerto Rico, Regional Office (RO), which inter alia denied service connection for arterial hypertension, granted service connection for generalized anxiety disorder with depressive features (formerly conversion reaction), and assigned a noncompensable rating. The Veteran disagreed with such denial and his rating and subsequently perfected an appeal. In May 2006, the Veteran testified before a Decision Review Officer (DRO) at the RO. Further, in June 2007, the Veteran testified before the undersigned Veterans Law Judge sitting at the RO. Copies of the hearing transcripts are of record and have been reviewed. The Board issued a decision in March 2008, in which it denied entitlement to service connection for arterial hypertension. The Board also denied entitlement to a compensable rating for service-connected generalized anxiety disorder with depressive features. The Veteran appealed the Board's March 2008 decision to the U.S. Court of Appeals for Veterans Claims (Court). In a February 2010 Memorandum Decision, the Court vacated and remanded the Board's March 2008 decision concerning the claims for entitlement to service connection for arterial hypertension and entitlement to a compensable rating for service-connected generalized anxiety disorder. The Court's bases for remand included failure by VA to fulfill its duty to assist by not obtaining private treatment records identified by the Veteran during the June 2007 Board hearing regarding the Veteran's treatment for his service- connected generalized anxiety disorder, and reliance by the Board on an inadequate medical examination with medical opinion that did not include a complete rationale for the negative opinion and failed to include a complete opinion regarding the Veteran's secondary service connection claim for arterial hypertension. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for arterial hypertension and a compensable rating for his service-connected generalized anxiety disorder with depressive features. Although the Board regrets the delay, review of the record reflects that additional development is necessary prior to analyzing the claims on the merits. As noted, in its February 2010 Memorandum Decision, the Court vacated the Board's March 2008 denial of service connection for arterial hypertension because the Board relied on an inadequate medical examination with medical opinion that did not include a complete rationale for the negative opinion and failed to include a complete opinion regarding the Veteran's secondary service connection claim for arterial hypertension. Review of the record reveals that the Veteran was provided with a VA examination regarding the etiology of his arterial hypertension disability. See July 2005 VA Hypertension Examination Report. Although the examiner provided an opinion regarding the etiology of the Veteran's arterial hypertension disability, the Board finds that such opinion is incomplete. In this regard, although the examiner opines that the "Veteran's arterial hypertension is not likely related to his service- connected diabetes mellitus," the examiner failed to opine whether the Veteran's arterial hypertension "was aggravated by" his service-connected diabetes mellitus. In addition, in forming a negative opinion, the examiner relied on the lack of renal involvement and that the Veteran "was diagnosed with hypertension in 1998 and with diabetes mellitus afterwards in 1999;" however, statements from the Veteran including other evidence of record indicates that hypertension did not predate diabetes mellitus and may have existed prior to or was diagnosed at the same time as diabetes mellitus. See July 2005 VA Genitourinary Examination Report (noting onset of diabetes mellitus in 1998); May 2006 DRO Hearing Transcript. Thus, the examiner failed to provide a complete rationale for the negative nexus opinion. See July 2005 VA Hypertension Examination Report. Therefore, the Board finds such examination inadequate to decide the service connection claim for arterial hypertension. As such, a new VA examination is necessary to ascertain whether the Veteran's arterial hypertension disability is related to, proximately due to, or aggravated by the service-connected diabetes mellitus disability. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c)(4) (2010). Further, in its February 2010 Memorandum Decision, the Court vacated the Board's March 2008 denial of a compensable rating for service-connected generalized anxiety disorder because VA failed to obtain private treatment records identified by the Veteran during the June 2007 Board hearing regarding the Veteran's treatment for his service-connected generalized anxiety disorder. Review of the evidence of record and the Veteran's testimony indicates that he received and continues to receive private treatment for his psychiatric disability from Dr. R. Cervantes. See June 2007 Board Hearing Transcript; February 2010 Memorandum Decision. The claims folder does not contain any treatment records from Dr. R. Cervantes, and such records identified by the Veteran may support his increased rating claim for the service- connected generalized anxiety disorder with depressive features. VA is, therefore, on notice of records that may be probative to the claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). Consequently, the Veteran's private treatment records from Dr. R. Cervantes should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. VBA should contact the Veteran and request that he identify all present treatment for his service-connected generalized anxiety disorder disability, including private psychiatric treatment from Dr. R. Cervantes (identified by the Veteran in the June 2007 Board Hearing Transcript). The Veteran should be allowed the opportunity to submit these records himself or to provide VA authorization to obtain any records so identified. Any additional medical records so obtained should be associated with the Veteran's VA claims folder. To the extent there is an attempt to obtain records that is unsuccessful, the claims folder should contain documentation of the attempts made. The Veteran and his representative should also be informed of the negative results, and should be given an opportunity to obtain the records. 2. After the above development has been completed and all outstanding records have been associated with the claims file, the Veteran should be afforded a VA examination to determine the current nature and severity level of his service-connected generalized anxiety disorder with depressive features disability. The claims folder should be reviewed by the examiner prior to the examination. All tests and studies deemed helpful by the examiner should be conducted in conjunction with the examination. Specifically, the examiner is requested to note all clinical manifestations of the Veteran's service-connected generalized anxiety disorder with depressive features, and provide an opinion concerning the degree of occupational and social impairment resulting from the Veteran's service-connected generalized anxiety disorder with depressive features, or, if this is not possible, the examiner should explain why it is not possible. A complete rationale for any opinion expressed should be included in the examination report. 3. The Veteran should also be provided a new VA examination regarding his arterial hypertension disability. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the arterial hypertension disability is related to, proximately due to, or aggravated by the Veteran's service-connected diabetes mellitus disability. A complete rationale should be provided for any opinion. The claims folder should be made available to the examiner for review. The entire claims file must be reviewed by the examiner in conjunction with examination and the report should state that such review has been accomplished. 4. Upon completion of the above-requested development, the AMC/RO should readjudicate the Veteran's service connection claim and increased rating claim, taking into account any newly obtained evidence. All applicable laws and regulations should be considered, including Rice v. Shinseki, 22 Vet. App. 447 (2009). If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). The purpose of the examinations requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 failure to cooperate by not attending the requested VA examinations may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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. 2010). _________________________________________________ C. TRUEBA 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) (2010).