Citation Nr: 1127222 Decision Date: 07/21/11 Archive Date: 07/29/11 DOCKET NO. 04-30 196 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America (VVA) ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran appellant had active service in the United States Air Force from June 1959 to April 1966. This case originally came before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision issued by the above Department of Veterans Affairs (VA) Regional Office (RO) that, in part, denied the appellant's claim of entitlement to service connection for hypertension. The Board upheld that denial in a decision dated March 8, 2006. (In that same decision, the appellant's claim for service connection for a low back disorder was remanded, and that issue has not yet been returned to the Board.) The appellant appealed the Board's decision denying his hypertension claim to the United States Court of Appeals for Veterans Claims (Court). In June 2008, the parties to the litigation filed a Joint Motion for Partial Remand (Joint Motion). The Veteran withdrew his appeal as to the claim for service connection for a bilateral knee disorder. A June 2008 Order of the Court granted the Joint Motion and vacated that portion of the Board's decision relating to service connection for hypertension The Court dismissed the appeal as to the bilateral knee service connection claim. In December 2008, the issue on appeal was remanded for readjudication pursuant to the provisions of 38 U.S.C.A. § 7252(a). The case has now been returned to the Board for appellate review. 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 Court has held that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The June 2008 Joint Motion indicated that a remand was required for compliance with the statutory duty to assist. Specifically, the Joint Motion noted that VA has a duty to assist the Veteran in attempting to obtain medical records noted as potentially relevant to his claim, and concluded that VA had not satisfied its duty to assist when no attempts were made to obtain private medical records from eight different private health care providers (seven physicians and one hospital) which had been identified in the Veteran's medical records already in evidence. The Board remanded the case to comply with the directives of the June 2008 Court order in December 2008. The December 2008 Board remand directed that VA seek the medical records of the appellant from the eight private health care providers identified in the Joint Motion. In addition, any unsuccessful attempt to obtain those records was to be documented in the claims file. It appears from a review of the claims file that the case was sent to the AMC, which in turn, sent the case to the Huntington, West Virginia, RO Resource Center. The May 2009 Supplemental Statement of the Case (SSOC) states that a letter was sent to the appellant, on January 6, 2009, in which he was asked to provide information about various health care providers by filling out the enclosed VA Forms 21-4142, Releases of Information. Although the claims file did not contain the aforementioned letter when the appeal was returned to the Board, the Board has obtained a copy from the Huntington RO Resource Center. It is undated, but appears from its language and context to be an accurate copy of the letter described in the SSOC. For example, nine copies of VA Form 21-4142, and an envelope addressed to VA for their return, were shown as Enclosures to the letter for completion by the Veteran in support of his claim). As stated in the SSOC, however, there is no indication that the Veteran has replied to that evidentiary development letter. Review of the evidence of record indicates that a December 2008 letter from the Board to the appellant, at an address in Addison, Texas, was returned by the United States Postal Service (USPS) in January 2009, as undeliverable. It appears that the appellant had moved, and the Board's letter was re-mailed in April 2009, to an address in Little Elm, Texas. That address in Little Elm is the same address used on the Huntington RO Resource Center's January 2009 letter to the Veteran. However, there is no documentary evidence (e.g., a date-stamp on the file copy) to establish that the letter was actually mailed to the Veteran. In addition, review of the claims file reveals that other documents are missing. For example, no VA Form 21-22a, Appointment of Individual as Claimant's Representative, is of record for the attorney who represented the appellant before the Court. While there is a copy of the appellant's supplemental brief to the Court, there is no copy of the original brief to the Court. The claims file does not contain a copy of the VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, submitted in May 2003, which appointed the Vietnam Veterans of America as the appellant's representative. It is unknown what other documents, if any, might also be missing from the claims file. On remand, therefore, the file should be reviewed and, if necessary, rebuilt. The appellant is service-connected for a psychiatric disorder diagnosed as a conversion reaction with psychoneurosis, effective from April 1974. He is not service-connected for any other disability. As reflected in VVA's Informal Hearing Presentation submitted to the Board in January 2011, the appellant has contended that his current hypertension is caused by, related to, or aggravated by, his service-connected psychiatric disability. See 38 C.F.R. § 3.310 (which was amended during the pendency of this claim and appeal, at 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). The RO has not, to date, obtained a medical opinion on the question of whether the appellant's cardiac pathology is causally or etiologically related to the service-connected psychiatric disability. In addition, the RO has not obtained a medical opinion which includes consideration of the theory of secondary service connection by way of aggravation by the psychiatric disability. See Schroeder v. West, 212 F.3d 1265 (Fed. Cir 2000); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994) (both for the general proposition that in claims involving presumptive service connection, the Board must also examine the evidence of record to ascertain if there is any other basis upon which to develop or grant the claim). On remand, therefore, the AMC/RO should consider the question of whether the appellant's current cardiac pathology is causally related to his service-connected psychiatric disability, by obtaining a medical opinion as to whether the appellant's service-connected psychiatric disability has caused or aggravated any cardiovascular disorder. To ensure that VA has met its duty to assist in developing the facts pertinent to the claim on appeal and to afford full procedural due process, the case is REMANDED for the following: 1. Ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A, the implementing regulations found at 38 C.F.R. § 3.159, and any other applicable legal precedent has been completed. 2. Associate with the claims file proper documentation of the Veteran's present appointment of representative. 3. In light of the apparent uncertainty as to the mailing of the January 2009 development letter and the Veteran's correct address, give the Veteran another opportunity to provide authorizations for VA to obtain medical evidence as requested in that letter. 4. To the extent there is an unsuccessful attempt to obtain any of these records, the claims file should contain documentation of attempts made. The appellant and his representative must also be informed of the negative results and be given the opportunity to secure the records. 5. After the above development is completed, arrange for a review of the appellant's claims files by an appropriate specialist (such as a cardiologist or cardiovascular surgeon) in light of the questions of causation presented in this case. The reviewer should address the history of the nature and extent of the Veteran's cardiovascular pathology, including hypertensive vascular disease and ischemic heart disease, if any. The reviewing physician should determine whether any documented cardiac disorders, including hypertension, are either directly causally related to the Veteran's service, or secondarily due to or aggravated by service-connected disability. Based on the findings of the review of the medical evidence in the claims files, the reviewer should express his/her opinions concerning the questions below. If it is determined that an examination is needed before the requested opinions can be rendered, the AMC/RO should schedule the appellant for such an examination. Specifically, the reviewer must address the questions of: (a) what cardiac pathology does the appellant currently have and when was said cardiac pathology initially manifested? Does the appellant have any heart disease that is separate from, or in addition to, his hypertensive vascular disease? (b) whether any signs or symptoms noted in service or within one year of service separation (in April 1966) were the first manifestations of the appellant's current cardiac pathology? (c) whether any current cardiac pathology was caused by the appellant's service-connected psychiatric disability as opposed to some other factor or factors? (d) whether the service-connected psychiatric disability aggravated, contributed to, or accelerated any existing cardiac or cardiovascular pathology above its pre-aggravation baseline level? and (e) if the appellant's service-connected psychiatric disability aggravated, contributed to, or accelerated any cardiac or cardiovascular pathology, including hypertensive vascular disease, to what extent, stated in terms of a percentage, did the disability so contribute as compared to the natural progress of the disease itself or as opposed to other possible contributing factors? A rationale must be provided for all opinions expressed, with reference to the medical literature as appropriate. Note: In assessing the relative likelihood as to origin and etiology of the cardiac/cardiovascular pathology currently present, the reviewer should apply the standard of whether it is at least as likely as not (i.e., to at least a 50/50 degree of probability) that any claimed disorder is causally or etiologically related to the Veteran's service-connected psychiatric disability or to treatment thereof, or whether such a causal or etiological relationship is unlikely (i.e., less than a 50/50 probability), with the rationale for any such conclusion set out in the report. Note: The term "aggravation" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of 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 it is to find against it. 6. Thereafter, readjudicate the claim, to include consideration of all the evidence of record and all appropriate legal theories of service connection. 7. If any benefit sought on appeal remains denied, the appellant and his representative should be provided an SSOC and appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The appellant is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655. See Kyhn v. Shinseki, No. 07-2349 (U.S. Vet. App. Jan. 18, 2011). 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 unless otherwise notified. 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). ____________________________ ANDREW J. MULLEN 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).