Citation Nr: 1127861 Decision Date: 07/26/11 Archive Date: 08/02/11 DOCKET NO. 07-05 954 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Y. Hawkins, Associate Counsel INTRODUCTION The Veteran served on active duty service from March 1964 to January 1968. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from an August 2006 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Muskogee, Oklahoma, which denied the Veteran's claim of entitlement to service connection for hypertension. In March 2009, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of the hearing has been associated with the Veteran's claims folder. In December 2009, the Board remanded the appellant's claim for further development, specifically to obtain a VA examination and opinion as to the etiology of the Veteran's claimed hypertension. Following a June 2010 VA examination, the VA Appeals Management Center ("AMC") issued a Supplemental Statement of the Case ("SSOC"), in which it continued to deny the appellant's claim. The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the appellant if further action is required is required on his part. REMAND The appellant contends that his in-service military occupational specialty ("MOS") as a Morse Interceptor Operator resulted in his developing hypertension. Alternatively, he avers that he incurred the disorder as a result of his service-connected bilateral hearing loss. After a thorough review of the claims folder, the Board has determined that additional development is necessary prior to the adjudication of the claim. The United States Court of Appeals for Veterans Claims ("Court") has held "that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with the terms of a remand is necessary prior to further appellate review and, if not, "the Board itself errs in failing to ensure compliance." Id. In its December 2009 remand instructions, the Board directed the VA examiner to provide an opinion regarding both (1) whether it is at least as likely as not that the Veteran's hypertension is related to his in-service MOS as a Morse Interceptor Operator, and (2) whether it is at least as likely as not that his hypertension was either caused or aggravated by his service-connected bilateral hearing loss. However, a review of the June 2010 VA examination report shows that, although the examiner provided a rationale for the opinion that the Veteran's hypertension was not the result of acoustic trauma in service, he/she did not provide a cogent explanation for the conclusion that his hypertension was not caused by his service-connected bilateral hearing loss. Rather, he/she merely explained that the Veteran's "hypertension manifested more than three decades post his time in service, and in the context of chronic pain." This statement does not sufficiently support the conclusion that his service-connected bilateral hearing loss did not cause or contribute to his hypertension. Under the Veterans Claims Assistance Act of 2000 ("VCAA") (Pub. L. No. 106-475, 114 Stat. 2096 (2000)), VA's duty to assist includes the duty to provide an adequate examination when an examination is indicated. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Once VA provides an examination, it must be adequate or VA must notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In addition, a medical examination must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl at 124. Accordingly, although the Board regrets the necessity of another remand, it nonetheless finds that such action is necessary in order obtain a supplementary medical opinion regarding whether the Veteran's service-connected bilateral hearing loss either caused or aggravated his hypertension. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); 38 C.F.R. § 4.70 (2010) (if the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or order a medical examination to support its ultimate conclusions). In addition, the Board notes that, although the Veteran has submitted a letter from a private audiologist, dated January 2011, concerning the likelihood that his hypertension resulted from his bilateral hearing loss, there are no treatment reports from this practitioner. Therefore, on remand, an attempt must be made to obtain such information, if it exists. Finally, the Board notes that the most recent VA outpatient treatment reports of record are dated October 2007. Therefore, while the case is in remand status, the RO/AMC should ensure that any additional VA treatment records pertaining to the Veteran's bilateral hearing loss, tinnitus and hypertension are obtained and associated with the claims folder. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify all private health care providers that have treated him for his hypertension, bilateral hearing loss and tinnitus since October 2007. After securing the necessary releases, the RO should attempt to obtain any and all records that have not already been associated with the claims folder, including those from audiologist, Mike Ward. All records obtained or responses received should be associated with the claims file. Any negative response should be included in the claims folder. 2. The RO/AMC should obtain updated VA treatment reports pertaining to treatment of his hypertension, bilateral hearing loss and tinnitus since October 2007. Any records obtained should be associated with the claims folder. Any negative reply must be included in the claims folder. 3. Following completion of the above, the Veteran's claims folder should be returned to the examiner who performed the June 2010 examination (only if she is available). The examiner should review the updated private and VA treatment records, if any (including the January 2011 letter from the Veteran's private audiologist) and indicate whether it is at least as likely as not (i.e., whether there is at least a 50 percent probability) that the Veteran's hypertension was either caused or aggravated by (permanent worsening as opposed to temporary flare-ups or increase in symptoms) by military service or his bilateral hearing loss and/or tinnitus. In considering the opinion of the private audiologist, Mike Ward, if the VA clinician finds that any currently-diagnosed hypertension is NOT related to service or a service-connected disability, he/ she is asked to explain his/her opinion in relation to that provided by Mr. Ward. All opinions must be accompanied by a complete rationale. 4. If the clinician who performed the June 2010 examination is not available, the claims folder must be referred to another examiner, who, after a complete review of the claims folder, including the June 2010 examination report, must provide an opinion regarding whether the Veteran's hypertension was either caused, or aggravated by service or a service-connected disability, to include bilateral hearing loss and/or tinnitus. The examiner, at his or her discretion, may order a second examination of the Veteran. In such case, the claims folder must be provided to the examiner in connection with the examination, and the examiner must state that the claims folder has been reviewed. Any tests deemed necessary should be conducted. The examiner should elicit a complete history of the Veteran's noise exposure and hearing loss/tinnitus symptomatology (both during and active military service) and note that, in addition to the medical evidence of record, the Veteran's personal statements have been considered. The examiner should then provide an answer to the aforementioned question. If, for any reason, the clinician is unable to offer an opinion without resorting to speculation, it should be so stated. In that case, the examiner must specifically support that conclusion with a detailed medical explanation that takes into consideration all of the pertinent evidence of record (including the Veteran's self-reported history). 5. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed and readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with an SSOC and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. 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. 2010). _________________________________________________ BARBARA B. COPELAND 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).