Citation Nr: 1300828	
Decision Date: 01/09/13    Archive Date: 01/16/13

DOCKET NO.  10-36 216	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUES

1.  Entitlement to service connection for hypertension. 

2.  Entitlement to service connection for a bilateral hearing loss disability. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

D. M. Donahue, Associate Counsel 
INTRODUCTION

The Veteran had active military service from March 1968 to March 1972.

The appeal comes before the Board of Veterans' Appeals (Board) from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which, in part, denied entitlement to service connection for bilateral hearing loss and hypertension.

A videoconference hearing was held in October 2012 before the undersigned sitting in Washington, D.C.  A copy of the transcript of that hearing is of record.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.

The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

Prior to the promulgation of a decision in the appeal, the Veteran requested that his appeal for service connection for a bilateral hearing loss disability be withdrawn.


CONCLUSION OF LAW

The criteria for withdrawal of substantive appeal for service connection for a bilateral hearing loss disability have been met.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.204 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION
 
A substantive appeal may be withdrawn on the record or in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202 (2012).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204 (2012).

During the October 2012 video conference hearing before the undersigned, the Veteran and his representative stated that the Veteran was withdrawing the issue of service connection for a bilateral hearing loss disability.  Because both the Veteran and his representative have clearly indicated the Veteran's wish to withdrawal his appeal as to service connection for a bilateral hearing loss disability, there remains no allegations of errors of fact or law for appellate consideration as to this issue.  See 38 C.F.R. § 20.204 (2012).  Under 38 U.S.C.A. § 7105 (West 2002), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  Accordingly, the Board does not have jurisdiction to review this appeal and it is therefore dismissed.


ORDER

Entitlement to service connection for a bilateral hearing loss disability is dismissed.


REMAND

For reasons expressed immediately below, the Board believes that the issue of entitlement to service connection for hypertension must be remanded for further development of the record.  The Board finds that a remand is necessary to ensure that the Veteran is accorded full compliance with the statutory duty to assist.
In this case, the Veteran asserts he has hypertension which was incurred in service. 

Service treatment records do not include any diagnosis of hypertension.  However, there were some elevated blood pressure readings in service.  During the enlistment examination in November 1967, his blood pressure reading during was 138/88.  
During a March 1969 three day check, the results were: 

Day
AM reading
PM reading
1
140/90 
130/80 
2
140/82  
134/86
3
134/80 
13/86

Upon separation from service, the Veteran's blood pressure reading was 138/84.

VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim.  38 U.S.C.A. § 5103A(d) (West 2002).  The evidence of a link between current disability and service must be competent.  Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).  The threshold for finding a link between current disability and disease or injury in service is low.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Because there is some indication of elevated blood pressure readings in service and the record reflects that the Veteran has a current diagnosis of hypertension, the Board finds a VA examination is necessary to determine the nature and etiology of his currently diagnosed hypertension.

During his October 2012 Board hearing, the Veteran asserted that he was first diagnosed with hypertension in service which he found out about when he applied to be a pararescue but was disqualified due to high blood pressure.  He stated he sought treatment after service at the VA Medical Center (VAMC) in Philadelphia or at the local Philadelphia General Hospital (which no longer exists), but he did not remember.  He reported that he had been taking medication for hypertension since 1973.  The Veteran also reported treatment at a facility in St. Louis.  Although it appears that treatment records from Philadelphia General Hospital are no longer obtainable, there is no indication that the RO attempted to obtain records from the Philadelphia VAMC.  As the case is being remanded for an examination the RO/AMC should attempt to obtain any outstanding identified treatment records related to the Veteran's hypertension. 

Accordingly, the case is REMANDED for the following actions:

1. Contact the Veteran and request the names and addresses of all medical care providers who treated him for his hypertension since service, to include any treatment immediately after separation from service.   After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder.  All attempts to procure records should be documented in the file.  If the AMC/RO cannot obtain any records identified by the Veteran, a notation to that effect should be inserted in the file.  

If VA is unable to secure these records, VA must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) notify him that he is ultimately responsible for providing the evidence.  38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012).

2. Schedule the Veteran for a VA examination to determine the nature and etiology of his current hypertension.  All indicated tests and studies are to be performed.  In conjunction with the examination, the claims folder must be made available to the examiner for review of the case.  A notation to the effect that this record review took place should be included in the report of the examiner.  

Based on the results of the physical examination and claims file review, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current hypertension was incurred during or as a result of active service, to specifically include elevated blood pressure readings noted therein.  

All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report.

If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  See Jones v. Shinseki, 23 Vet. App. 382 (2010). 

3. Thereafter, readjudicate the Veteran's claim.  If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC).  The SSOC should contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal since the August 2012 SSOC.  An appropriate period of time should be allowed for response.

The Veteran has the right to submit additional evidence and argument on the matter 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. 2012).




______________________________________________
LANA K. JENG
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs