Citation Nr: 1240468 Decision Date: 11/28/12 Archive Date: 12/05/12 DOCKET NO. 09-08 315 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for hypertension, to include as secondary to herbicide exposure and/or service-connected disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to January 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee issued in May 2008. In May 2012, the Veteran submitted a claim of entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). See Virtual VA (VVA) electronic claims file associated with the Veteran's claim. This matter is referred to the originating agency for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a) (2012). Furthermore, service connection may be established on a secondary basis for a disability which is aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). However, the veteran may only be compensated for the degree of disability over and above the degree existing prior to the aggravation. Id. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In the present case, the Veteran has been treated for hypertension since 1993. VA examination reports dated in April 2008 and April 2009 (in pertinent part) include medical opinions that the Veteran's hypertension was not caused by or aggravated by his service-connected diabetes mellitus. Thereafter, in February 2012, the Veteran was awarded service connection for coronary artery disease. The Veteran's representative has essentially alleged that an examination to determine if there is a nexus between hypertension and coronary artery disease is necessary. Prior to the examination, all outstanding, pertinent medical records should be obtained. In this regard, the Board notes that the Veteran's VVA file contains copies of signed VA Forms 21-4142, Authorization and Consent, to enable the RO to obtain his medical records from his private physicians. These forms were signed by the Veteran in April and May 2012; however, it does not appear that the RO sought to obtain the private treatment records. Notably, the signed authorization forms dated were valid only for a specified period of time (180 days), and automatically revoked thereafter. Because the consent forms have expired, updated authorization is necessary. On remand, the Veteran should again be requested to provide authorization form for release of all pertinent private treatment records. Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should contact the Veteran and obtain the names and addresses of all medical care providers who treated him for hypertension and coronary artery disease since his discharge from service. In particular, the RO or the AMC should request from the Veteran authorization forms for release of all pertinent, outstanding, private treatment records. After the Veteran has signed the appropriate releases, the RO or the AMC should secure copies of the complete records of treatment or evaluation from all sources the Veteran identifies. All attempts to procure records should be documented in the files. If the RO or the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the files. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. Thereafter, the Veteran must be afforded a VA psychiatric examination by a physician with the appropriate expertise to determine whether it is at least as likely as not that any currently-diagnosed hypertension was caused or aggravated by his service-connected coronary artery disease. The claims file and any pertinent evidence in Virtual VA that is not included in the claims file must be made available to and reviewed by the examiner, and any indicated studies should be performed. A notation to the effect that this record review took place should be included in the examination report. Based on review of the pertinent medical history, examination of the Veteran, and with consideration of sound medical principles, the examiner should provide an opinion with respect to the Veteran's hypertension present during the period of this claim as to whether there is a 50 percent or better probability that the disability was caused or permanently worsened by the Veteran's coronary artery disease. The examiner must explain the rationale for all opinions expressed. All findings and conclusions should be set forth in a legible report. If the examiner opines that the questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why causation is unknowable must be provided. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. The RO or the AMC should then re-adjudicate the claim. The provisions of 38 C.F.R. § 3.310(b) must be applied. If the benefit sought on appeal remains denied, the RO or the AMC should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the requisite opportunity to respond. The case should then be returned to the Board, if in order, for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or 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 A. PAPPAS 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) (2012).