Citation Nr: 1234950 Decision Date: 10/09/12 Archive Date: 10/17/12 DOCKET NO. 04-19 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to an increased evaluation for internal derangement of the right knee, currently evaluated as 10 percent disabling. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from June 1977 to October 1990 with a period of active duty for training from July 1976 to June 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2007, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. The issues on appeal were previously denied by a November 2007 Board decision. The Veteran subsequently filed an appeal with the United States Court of Appeals for Veterans Claims (Court). While the case was pending at the Court, the VA Office of General Counsel and the Veteran's attorney filed a joint motion for remand, requesting that the Court vacate the Board's November 2007 decision and remand the claims. In a December 2009 Order, the Court granted the joint motion, vacating the Board's November 2007 decision and remanding the claims to the Board for compliance with directives that were specified by the joint motion. In August 2010, the Board remanded these issues for further development, and the case has been returned for appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a) (2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately, another remand is required in this case. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims. With regard to the claim for hypertension, the Board remanded the claim in August 2010 for an examination to determine whether the disorder existed prior to his entry into service and if so whether it increased in severity during the Veteran's military, or in the alternative to determine whether it was related to service. Subsequently, the Veteran was afforded an examination in November 2010. Upon review of the claims folder and evaluation of the Veteran, the examiner indicated that he could not address the etiology of the Veteran's hypertension without resorting to mere speculation. She stated that the Veteran reported that he had hypertension prior to service and secretly took medication during service, and his service treatment records reflect normal blood pressure readings and denials of medication use and of hypertension. The examiner further noted that the Veteran did not consistently have elevated blood pressure during service and there were no records from 1991 to 1999. The Board finds that this examination report is inadequate. Although the examiner noted the Veteran's contentions that he had hypertension prior to service, it does not appear that she took these statements into consideration in attempting to render an opinion. The Board notes that with regard to the Veteran's statements that he had been treated for hypertension before service and that he took medication throughout service, that he is competent to provide such testimony. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Furthermore, the Board notes that in Dalton v. Nicholson, 21 Vet. App. 23 (2007), the United States Court of Appeals for Veterans Claims (Court) held that an examination was inadequate where the examiner did not comment on a Veteran's report of in-service injury and instead relied on the lack of evidence in the service treatment records to provide a negative opinion. In addition, the Board points to the October 2004 letters from Drs. M.C.E and J.M.E., who both reported that the Veteran had been treated for hypertensive vascular disease from October 1975 to February 1976 and was given medication including Serpasil and Acetylsalicylic acid. In a September 2006 letter, a private physician, Dr. H.O.U., indicated that the Veteran was "treated and subsequently confined in [the doctor's] clinic". . . in October 1978. . . for hypertension. Thus, this is not a situation in which the evidence consists solely of the Veteran's lay assertions. Additionally, in a May 2007 statement, the Veteran's wife indicated that she had "monitored the blood pressure of [the Veteran] from the time [they] were married in July 1977 and up to the present three times a week." His wife reported that the Veteran's "blood pressure has been controlled with medications." The wife's signature indicates that she is an R.N. in the CCU/ICU of a private hospital. In an undated letter, Dr. J.M.E. indicated that the Veteran was treated for hypertension from 1978 to 1990, and was prescribed different medications in 1978, 1985, and 1990. Therefore, the Veteran must be provided another examination to determine the etiology of his hypertension, taking into the overall evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that once the VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, the VA must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). As to the claim for an increased evaluation for internal derangement of the right knee, the Board remanded this issue to obtain an examination to determine the current severity of the disorder. Although the Veteran was afforded an examination in November 2010, he refused a right knee evaluation at that time. However, when he was provided another examination in December 2011 to determine his employability, the Veteran cooperated and a basic evaluation of the right knee was done. Upon review of the December 2011 examination report, the Board finds that it is insufficient to evaluate the current severity of the Veteran's right knee disability. Although range of motion was tested, the other criteria outlined in the Board's August 2010 remand instructions (i.e. weakened movement, excess fatigability, incoordination, or pain; functional limitations during flare-ups/repeated use; and subluxation/lateral instability) were not addressed. To afford the Veteran all benefit of the doubt, the Board finds that a new examination for the right knee is warranted. The Board would like to point out to the Veteran that while VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one-way street. Woods v. Gober, 14 Vet. App. 214, 224 (2000);, 13 Vet. App. 449, 452 (2000) (noting that a veteran cannot passively wait for help from VA). The Veteran's cooperation is critical to ascertain the current severity of his disability. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.) 1. Arrange for the Veteran to undergo a VA examination to determine the nature and etiology of any current hypertension. The claims folders must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should diagnose whether the Veteran has hypertension and, if so, should then respond to the following inquiries: a. Please render an opinion as to whether it existed prior to his entry into service, and, if so, whether it increased in severity during the Veteran's military service beyond the natural progression of the disease. b. If his current disability is not found to have preexisted service, the examiner should also opine as to whether it is at least as likely as not (a 50 percent probability or more) that the disability had its onset in service, or is otherwise related to the Veteran's military service. In rendering the opinion, the examiner must consider the Veteran's statements regarding taking medication throughout service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on a Veteran's report of in-service injury and instead relied on the lack of evidence in the service treatment records to provide a negative opinion). The examiner must address pertinent evidence, including the letters from various doctors and the Veteran's wife (an RN), and discuss all contradictory evidence of record. The rationale for all opinions expressed must also be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she should state such and provide rationale for that non- opinion. 2. Arrange for the Veteran to undergo a VA examination to determine the severity of his service-connected internal derangement of the right knee. The claims folders must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should describe all pertinent symptomatology associated with the Veteran's right knee disability and should provide the following information: a. The examiner should specifically state range of motion findings; b. The examiner should comment on whether this disability exhibits weakened movement, excess fatigability, incoordination, or pain on use attributable to the service-connected disability (if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to these symptoms); c. The examiner should discuss whether pain significantly limits functional ability during flare-ups or following repeated use (these determinations should also, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups); d. The examiner should opine as to whether the Veteran has subluxation or lateral instability of the right knee, and if he does, should describe its severity. 3. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the 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. 2011). _________________________________________________ MICHAEL LANE 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) (2011).