Citation Nr: 1300445 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 10-01 877 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for hypertension, to include as due to herbicide exposure, chemical exposure, or as secondary to service-connected diabetes mellitus, type II. 2. Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 to October 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In June 2011, the Veteran presented sworn testimony during a personal hearing at the Nashville RO, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims folder. Additionally, evidence has been associated with the Veteran's claims folder which was accompanied by a waiver of local consideration. See 38 C.F.R.§§ 19.9, 20.1304(c) (2012). Additionally, in an April 2011 rating decision, the RO denied the Veteran's claim of entitlement to service connection for sleep apnea. As explained in further detail below, the Veteran filed a timely notice of disagreement of the April 2011 rating decision; however, a statement of the case (SOC) has not been submitted addressing this issue. In Manlincon v. West, 12 Vet. App. 238 (1999), the United States Court of Appeals for Veterans Claims (the Court) held that where a notice of disagreement (NOD) is filed but a SOC has not been issued, the Board must remand the claim to the agency of original jurisdiction so that a SOC may be issued. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. 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 Service connection for hypertension In order to establish service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence of a disease or injury or evidence of a service-connected disability; and (3) evidence of a nexus between (1) and (2). See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). As to the first element-current disability, the competent and probative evidence of record documents multiple diagnoses of hypertension. See, e.g., a private treatment record from E.L., M.D., dated January 2009. With respect to Hickson element (2)-including in-service disease in particular, the Board notes that the Veteran complained of high or low blood pressure on his January 1965 report of medical history in conjunction with his induction examination as well as his October 1967 report of medical history in conjunction with his separation examination. However, he was not diagnosed with hypertension during either examination. The remainder of his service treatment records are absent complaints of or treatment for hypertension. Additionally, the first competent evidence of hypertension is dated in June 1994, more than 25 years after the Veteran's discharge from active duty. Concerning in-service injury, the Board concedes the Veteran's in-service exposure to Agent Orange. Of particular importance in this regard is the fact that service personnel records confirm the Veteran's service in the Republic of Vietnam. His exposure to herbicides is, therefore, presumed. See 38 U.S.C.A. § 1116(f). According to 38 C.F.R. § 3.309(e) (2012), certain diseases may be presumed to be related to exposure to herbicides; hypertension is not one of the listed diseases. On August 31, 2010, the Secretary of VA published a final rule in the Federal Register amending 38 C.F.R. § 3.309(e) to add, in part, ischemic heart disease as a presumptive condition. See 75 Fed. Reg. 53,202. Because ischemic heart disease refers only to heart disease, hypertension was not included. Additionally, in September 2011, the National Academy of Sciences (NAS) issued Veterans and Agent Orange: Update 2010 (Update 2010). Based on the Update and prior NAS reports, the Secretary of Veterans Affairs determined that a presumption of service connection based on exposure to herbicides in the Republic of Vietnam is not warranted for hypertension. See 77 Fed. Reg. 155 (August 10, 2012). Therefore, hypertension may not be presumed to be related to herbicide exposure. Despite the lack of presumptive service connection, service connection based on direct causation may still be established pursuant to Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). VA has a duty to obtain medical opinion evidence if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent lay or medical evidence of a current disability, establishes that the Veteran suffered an event, injury or disease in service, and indicates that the current disability may be associated with the in-service event, injury or disease. 38 C.F.R. § 3.159(c)(4). Here, while there is a current disability and in-service exposure to herbicides, the evidence does not indicate that his hypertension may be related to that exposure. Rather, the evidence (including the Secretary's determination based on the National Academy of Sciences' findings) indicates a non-relationship. Therefore, the Board is not seeking a medical opinion with respect to this theory of entitlement. The Veteran is free to seek a medical opinion on his own, while the case is in remand status. The Board also notes that the Veteran has contended that his hypertension is related to chemicals, including liquid oxygen, that he handled as part of his duties as a cryogenics specialist. See, e.g., the June 2011 Board hearing transcript, pgs. 3-6. The Veteran served on active duty from December 1965 to October 1967. His DD Form 214 reflects that his military occupational specialty involved working with chemicals. As indicated above, his service treatment records are negative for any history, treatment, or diagnosis of hypertension. Nonetheless, pursuant to the provisions of 38 U.S.C.A. § 1154(a), the Board finds the Veteran credible with regard to his statements that he worked with chemicals, including liquid oxygen, during his military service. Lacking evidence to the contrary of a connection, and finding the Veteran's statements credible as to having experienced high blood pressure since service, the Board finds that an opinion is required to resolve this matter. With respect to the theory of entitlement based on secondary service connection, there is no medical opinion of record which indicates whether the Veteran's hypertension is related to his service-connected diabetes mellitus. In light of the foregoing, the Board is of the opinion that a clarifying VA examination would be probative in ascertaining whether the Veteran's hypertension is related to his diabetes mellitus or his in-service chemical exposure. See Charles v. Principi, 16 Vet. App. 370 (2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4) (2012). Service connection for sleep apnea As was described in the Introduction above, in an April 2011 rating decision, the RO denied the Veteran's claim of entitlement to service connection for sleep apnea. The Veteran submitted a notice of disagreement (NOD) with that decision. See the Veteran's statement dated July 2011. As indicated above, the agency of original jurisdiction has not issued a statement of the case (SOC) addressing this issue. In Manlincon, supra, the Court held that where a NOD is filed but a SOC has not been issued to the issue that the Veteran expressed disagreement with, the Board must remand the claim to the agency of original jurisdiction so that a SOC may be issued. Thus, the agency of original jurisdiction must issue a SOC as to the Veteran's claim of entitlement to service connection for sleep apnea. The Veteran is advised that to continue an appeal on the issue of service connection for sleep apnea, he will need to file a timely substantive appeal in response to the SOC. While the further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature, extent, and etiology of his hypertension. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted. The examiner must provide an opinion as to the following: a. Whether it is at least as likely as not (50 percent or greater) that the Veteran's hypertension is related to his military service, including his credible report of exposure to chemicals including liquid oxygen. b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is either (1) caused by, or (2) aggravated (i.e. permanently worsened beyond the normal progression of the disability) by his service-connected diabetes. If the examiner finds that hypertension is aggravated by the service-connected diabetes, then he/she should quantify the degree of aggravation. The examiner should indicate in his/her report that the claims folder was reviewed and include the reasons behind any opinions expressed. A report should be prepared and associated with the Veteran's VA claims folder. Note: 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. 2. Thereafter, readjudicate the issue of entitlement to service connection for hypertension, to include as due to chemical exposure or as secondary to service-connected diabetes mellitus. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for further appellate review. 3. The RO should issue a SOC pertaining to the issue of entitlement to service connection for sleep apnea. In connection therewith, the Veteran and his representative should be provided with appropriate notice of his appellate rights. If, and only if, the Veteran files a timely substantive appeal, the case must be returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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. 2012). _________________________________________________ Bethany L. Buck 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).