Citation Nr: 1237227 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 06-37 388 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The Veteran served on active duty from July 1975 to May 1987. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the RO in April 2005 (which, in pertinent part, denied service connection for hypertension) and in September 2009 (which, in pertinent part, granted service connection for bilateral hearing loss at a zero percent rating). The Board remanded the claim for hypertension in April 2008 and in August 2011 for further evidentiary development. In July 2007, the Veteran, accompanied by his representative, testified before the undersigned Acting Veterans Law Judge at the RO. A transcript of the hearing is included in the claims file. 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 Regarding the rating for bilateral hearing loss, the September 2009 rating decision granted service connection and assigned a noncompensable rating. In a March 2010 statement, the Veteran clearly expressed disagreement with this decision. The filing of a timely notice of disagreement initiates the appeal process. Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). As a statement of the case in the matter has not yet been issued, a remand for such action is required. Manlincon v. West, 12 Vet. App. 238 (1999). Regarding the claim for service connection for hypertension, the Board is of the opinion that further notice and development of the record are required to comply with VA's duties to notify the Veteran and to assist him in the development of the facts pertinent to his claim. See 38 C.F.R. § 3.159 (2011). The Veteran and his representative have raised a new (secondary service connection) theory of entitlement to this benefit sought; it is alleged that medication (ibuprofen) prescribed for his now service-connected disabilities of both ankles and both knees caused or aggravated his hypertension. 38 C.F.R. § 3.310(b). The Veteran has not received notice of what is needed to substantiate the secondary service connection theory of entitlement (or of his/VA's respective responsibilities in evidentiary development of this theory of entitlement), and the RO has not addressed this theory of entitlement in the first instance. The April 2005 rating decision on appeal denied service connection for hypertension on a direct basis only, with no consideration of secondary service connection. Pursuant to the Board's August 2011 decision, a September 2011 rating decision granted service connection for disabilities of the right knee, left knee, right ankle, and left ankle, rated 10 percent each from October 25, 2004. (He also has service connected tinnitus, bilateral hearing loss, and left vocal cord stripping, which are not pertinent in this matter). See Roebuck v. Nicholson, 20 Vet. App. 307 (2006) (although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim). The Board thus finds that a further VA opinion is needed as to this new causation theory. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The RO should issue a Statement of the Case on the issue of an increased rating for bilateral hearing loss. The Veteran should be advised that this matter will only be before the Board if he timely perfects an appeal by submitting a substantive appeal. If he does so, the matter should be returned to the Board for appellate consideration. 2. Regarding the matter of service connection for hypertension, the RO should provide the Veteran with 38 C.F.R. § 3.159(b) notice for a claim of service connection for such disability on a secondary basis (specifically as secondary to the Veteran's service-connected bilateral knee and ankle disabilities). He should have adequate opportunity to respond. The RO should arrange for any further development suggested, including securing for association with the claims file copies of the complete clinical records (those not already associated with the claims file) of all VA evaluations and/or treatment the Veteran has received for hypertension. 3. The RO should then return the claims file to the February 2012 VA examiner to determine the etiology of his hypertension. The Veteran's claims file (including this remand) must be reviewed by the examiner. (If the February 2012 VA examiner is unavailable, the RO should then arrange for an examination of the Veteran by another appropriate examiner.) Based on a review of the claims file, the examiner should provide an opinion responding to the following: what is its most likely etiology of the Veteran's hypertension? Specifically, is it at least as likely as not (a 50% or greater probability) that it was either (i) caused or (ii) aggravated by (increased in severity due to) his service-connected disabilities (disabilities of both knees and both ankles), including medications prescribed for such disabilities? The examiner must explain the rationale for all opinions, citing to supporting factual data or medical texts/treatises, as appropriate. 4. The RO should then re-adjudicate the claim of service connection for hypertension, including the newly raised claim of secondary service connection. If the claim remains denied, the RO should issue an appropriate Supplemental Statement of the Case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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). These claims 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). _________________________________________________ A. C. MACKENZIE 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) (2011).