Citation Nr: 1301427 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 09-37 862 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to an evaluation in excess of 10 percent for anxiety disorder. REPRESENTATION Appellant represented by: Fernando V. Narvaez, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to April 1968, with service in the Republic of Vietnam from December 1966 to December 1967. This matter has come before the Board of Veterans' Appeals (Board) on appeal from June 2008 and July 2008 rating decisions of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge, L. M. Barnard, in February 2010. A transcript of the hearing is associated with the claims file. The Veteran was represented by the Disabled American Veterans at that time. Additional records suggested that the Veteran had retained a private attorney. The Veteran was sent a letter in April 2011 requesting clarification regarding his representation but incorrectly identified the private attorney by the Veteran's name. This letter indicated that if the Veteran failed to respond the issues would be remanded in order for the Veteran to be provided the opportunity to have a new hearing that included representation by the private attorney. The Veteran did not directly respond to that letter, but did submit a VA Form 21-22a (Appointment of Individual as Claimant's Representative) signed by himself and his current private attorney, Fernando V. Narvaez, Esq. In July 2011, the Board remanded this case for a Travel Board hearing. Thereafter, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge, J. A. Markey, in May 2012. At that time, he was represented by his current private attorney. A transcript of the hearing is also associated with the claims file. VA law requires that the Veterans Law Judge (VLJ) who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). Additionally, when two hearings have been held by different VLJs concerning the same issue or issues, the law also requires that the Board assign a third VLJ to decide that issue or issues because a proceeding before the Board must be assigned either to an individual VLJ "or to a panel of not less than three members of the Board." 38 U.S.C. § 7102(a); 38 C.F.R. § 19.3. In Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011), the Court held that under § 20.707, a claimant must be afforded an opportunity for a hearing before all the Board members who will ultimately decide his appeal. The transcript of the May 2012 hearing shows that the Veteran was made aware of this and that he waived his right to be heard by the third VLJ assigned to the Board panel. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. This paperless file contains additional relevant documents, including VA treatment records, which have been reviewed in conjunction with this appeal. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Service connection - Hypertension The Veteran is seeking service connection for hypertension. In this regard, the Board finds that a VA examination is necessary prior to rendering a decision on this issue. VA must consider four factors in determining whether the duty to assist requires a medical examination or medical opinion be sought with respect to a veteran's claim for benefits. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In this case, the record indicates a current diagnosis of hypertension. Additionally, the Veteran is service connected for an anxiety disorder. Likewise, the Veteran has submitted the November 2008 statement of a VA certified physician's assistant that reads, "I would agree that his anxiety can cause exacerbations of elevated blood pressure." While exacerbations of elevated blood pressure are not necessarily the same as aggravation of the Veteran's underlying hypertension, this is sufficient to trigger VA's duty to provide an examination. Alternately, the Veteran has claimed that his high blood pressure either began during or was caused by his hospitalization for malaria at the Philadelphia Naval Hospital from December 1967 to early 1968. A review of the Veteran's service treatment records does not show hospitalization for malaria; however, the Veteran was hospitalized at the Philadelphia Naval Hospital during this time period. This hospitalization was for treatment of syphilis. Thus, the examiner is also asked to comment on whether the Veteran's current hypertension is related to that in-service disease and hospitalization. Initial Rating - Anxiety Disorder The Veteran is also seeking a higher initial rating for his service connected anxiety disorder. Again, the Board finds that an examination is necessary prior to deciding this issue. The most recent VA psychiatric examination of record was performed in July 2009, more than three years ago. Moreover, at the time of his February 2010 hearing the Veteran reported that he believed his anxiety disorder symptoms had increased since the July 2009 examination. Thus, another VA examination is necessary to establish the Veteran's current level of psychiatric disability. See, e.g., Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's current hypertension. The claims folder and relevant records from Virtual VA must be made available to, and reviewed by, the examiner. a. The examiner should opine whether it is at least as likely as not (i.e., probability of 50 percent or greater) that hypertension is attributable to the Veteran's active service, to include his hospitalization for syphilis. b. The examiner should opine whether it is at least as likely as not (i.e., probability of 50 percent or greater) that hypertension is attributable to the Veteran's service connected anxiety disorder. The examiner should provide reasons for the opinion. The reasons for the opinion should include consideration of the Veteran's reports. The medical reasons for accepting or rejecting the Veteran's statements should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 2. Schedule the Veteran for a VA mental health examination to determine the current severity of his anxiety disorder. The claims folder should be available to the examiner and reviewed in conjunction with the examinations. The report should set forth all objective findings regarding his psychiatric condition, particularly the current severity of symptoms and their effect, if any, on the Veteran's employability. 3. If a benefit sought is not granted, issue a supplemental statement of the case and give the Veteran opportunity to respond before the record is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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. 2012). ________________________ _________________________ L. M. BARNARD J. A. MARKEY Acting Veterans Law Judge, Veterans Law Judge, Board of Veterans' Appeals Board of Veterans' Appeals _________________________________________________ JAMES L. MARCH 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).